Transcript – Q&A, The Sydney Institute
Q&A, THE SYDNEY INSTITUTE
MONDAY, 24 JULY 2023
SUBJECTS: Workplace relations reform, standing up for casual workers, gig economy, Hawke/Keating reforms.
GERARD HENDERSON, MODERATOR: Take us back to Northern Tasmania and the woman who wanted to be able to teach sport to her kids and their friends and whatever else. So if you’re going back in say a year or two years before the next election, how would her circumstances have changed? What would come about that would make sure she could do sport on Saturday or Sunday; what would it look like?
TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: It would depend on the aspect of her circumstances that I don’t know. And it would be – was she in fact having hours that were all over the place all the time, in which case this change would not actually fix her problem. But if she was in a circumstance where her hours were quite regular but she just couldn’t give the guarantee that she wouldn’t end up being expected to work at training or sporting, then she would now be in a situation where she would be able to approach the employer and could not be unreasonably refused for her to say, “I’d like those hours to be converted to permanent “. That would then mean her hourly rate would go down, her roster would be far more reliable, and leave entitlements would become part of her working life.
HENDERSON: And this would be enforced by?
BURKE: If it was unreasonably refused, then the place to appeal would be the Fair Work Commission, and the reason for having the Fair Work Commission and the appeal of that is it’s effectively a no cost jurisdiction in terms of not having to deal with all the legal fees that accompany the Federal Court.
HENDERSON: So there’s no one supervising that, you’d have to go to the Industrial Relations Commission, or the Fair Work Commission?
BURKE: The fact that – the thing that I like about arbitration in the Fair Work Commission is the fact that you have it resolves a whole lot of disputes that never get to it. When you are negotiating at a workplace and someone knows there is actually no ultimate enforcement, it is much harder to reach agreement. If people know that ultimately there is an arbiter that it might be appealed to, then you often reach mutual agreement where you otherwise might not have.
HENDERSON: I’ve got a question here from someone in Melbourne. Keith Harvey in Melbourne. What are the Government’s plans re workers in the gig economy, which is beyond the topic of your talk tonight, but I’m sure you’re across that.
BURKE: I must say on this the consultation’s going exceptionally well. I’ll have more to say in the coming weeks on that. The principle is this: at the moment the – so, if you sort of think, what are we talking, gig economy. Think the different platforms you use when you’re doing ride share, when you’re getting food delivered to your house, or if you have any interface with the NDIS or the aged care system, there’s a platform called Mable which people are often on. It’s where people are very much employed and not having high degrees of power through those apps when I talk about the gig economy. I’m not talking about places like Airtasker where it effectively runs as though it’s the trading post, but a digital form.
At the moment on those platforms, the rates of pay for those workers are frequently below what the award rate would be. But what happens when you try to get the minimum standards, and the Fair Work Commission’s the home for minimum standards, they ask the first question: “Are you an employee?” And if the answer is yes, you get a whole lot of rights. If the answer’s no, all those rights fall off a cliff. We want to turn that cliff into a ramp.
For people in the gig economy, just say, look, a whole lot of the rights that employees get don’t work for the gig economy, like it doesn’t work, for example, to give people rostering rights, where you choose when you log on and off the way you do in a gig economy. There’s a whole lot of rights that just don’t fit. But there are some minimum standards where, if we want to be a country where people don’t rely on tips to be able to survive, then we should have some minimum standards such as minimum rates of pay.
Now a minimum rate of pay for the gig economy might be expressed not in minimum shifts of three or four hours but may well be expressed in five minute blocks or one minute blocks, there are different ways it could be done. But effectively the concept for the gig economy is for those workers, where for all intents and purposes, they are the exact sort of workers for whom the award system was created, and they have now fallen outside it. We need without changing their method of engagement to find a way of having some minimum standards there.
HENDERSON: We’ve got another Zoom question here about the Commonwealth vis a vis the states. So, what you’re talking about tonight in relation to the federal jurisdiction or the Workplace Commission it’s now called, the old Arbitration and Conciliation Commission – to what extent and what use would it prevail within the New South Wales jurisdiction or the South Australian jurisdiction where this question comes from, to what extent does that occur?
BURKE: Most employees in Australia now are under the federal system. State government employees are under the state system, and there are some others who are – other employees who are under state systems, but overwhelmingly now workplaces, because the Corporations Power is the basis of the Fair Work Act – it’s not the only basis, but there’s a few – but most workers are under the Commonwealth jurisdiction if they’re in an employment relationship.
The casual changes that I referred to, which go to employees, affect everybody in the Commonwealth jurisdiction, so it would not have an impact on most state government workers.
The gig economy example that you just asked me is in fact a new jurisdiction for the Fair Work Commission.
That’s an area where to some extent some states have tried a little bit to do some regulation, but it is basically an unregulated sector at the moment.
HENDERSON: And the states are happy with it?
BURKE: The states are always happy depending on where you draw lines, and so the consultation that’s happening across the sector at the moment is where — one of the tensions that you have to deal with in my portfolio is business consultation will usually gravitate towards federal systems because of the simplicity that comes with that, and the efficiencies that come with that, but state ministers will still want to have their own jurisdiction.
But I think the large issue of where we’re heading is effectively a divide where, for most workers other than state government employees, they’re in the federal system for their working rights, work health and safety remains primarily a state jurisdiction.
HENDERSON: Question over here.
QUESTIONER: Thanks, Minister. From where you see it, why is business making a fuss? Because as you describe it, it doesn’t seem to be a problem. I mean it seems fair enough that people should be getting their rights or certainly they’re going to be on those sort of contracts, they’re not just flying in one day and not out there the next week. So what is – what else is there, why have business, and is it big business only or also small business that are creating a fuss about it?
BURKE: The issue of what small business exemptions we provide across the whole package is something we’re doing in a separate piece of work, so I can’t offer any of that tonight.
It’s not for me to speak on behalf of business – that would be inappropriate, and I’d never do that. Certainly, there are different levels of concern from different business organisations, depending on the issue. One of the things that is a characteristic of this year’s legislation is, whereas last year’s legislation, where we dealt with the whole framework of the Act and the entire concept of bargaining and the issues of gender equality and flexibility rights. Effectively every business in some way, some of the rules under which they work were affected by last year’s legislation.
This year most businesses don’t use the loopholes that I’ve described. But the businesses that do are often highly, highly – I don’t want to use the word “reliant”, but have built their current business design around it. Which might also mean if they are saving money by undercutting an agreed rate with labour hire, they know exactly how much money they’re saving. That puts a different focus, and just as the job of trade unions is to represent their members, the job of business organisations is to represent their members.
This particular casual one, I’ve been a bit surprised by some of the reaction today, for the simple reason that a couple of the issues that have been raised for some time are things that ultimately the Government hasn’t done. And the two in particular are the concept of forcing people to convert, which we haven’t done, and the second is the concept of back pay and ways that the issue could be gamed, which we haven’t done.
There will still be some businesses, and we’ll all have children and others who we know, or young friends, where we’ve heard the stories of the person who rosters people and keeps them as casuals deliberately as effectively a loyalty game in getting people to work harder as a result. It is harder for that sort of employer to operate under this rule, because their workers, if they’re getting the regular shifts, will have the right to say, “I’d actually liked that locked down.” So, there will be some, this one, who are behaving in a way that is currently legal, but I’d view as improper in a good working relationship, where this is a further restriction on them.
HENDERSON: There’s a question down here.
QUESTIONER: Minister, does this only apply to businesses? What about governments? We have been long hearing about teachers, for example, being, you know, permanent casuals and working from December to January, or January to December, as you say, unable to get mortgages, but, you know, maybe working at the one school for five or ten years. Does this apply to them?
BURKE: Sadly, within the Federal system — well we’ve got non government schools within the federal system, but by and large we don’t have the employment of teachers within the federal system. But can I say the example that you’ve just said reminds me of a teacher coming to the exact sort of forum that I described in Northern Tasmania, coming to one that I held in the outer suburbs of Brisbane, where the teacher had just qualified for long service leave and was still a casual on the exact sorts of arrangements that you said.
I do think what we’re doing here will have an impact on some of the issues that the states follow through on, but our jurisdiction is our jurisdiction.
HENDERSON: I’ve got a Zoom question. Someone who’s got a theoretical interest in this, Thomas Edderley. What if an employee converts to permanent and then begins to work in an irregular pattern, can they convert back to casual? What is the relevant period for assessing the nature of someone’s employment?
BURKE: The concept of wanting to convert back would be a mutual agreement concept. It’s not something that we’re seeking to legislate a structure around.
HENDERSON: Okay, have I missed anyone here? So, I’ve got a question here. We’re finishing on the hour, so if you’re going to get in, apart from our active Zoom people, let us know. Yep.
QUESTIONER: Thank you. To your point about the [indistinct] back payments you raised the point there of the long service. Will there be recognition of their time as casuals in the conversion process for the purpose of long service leave?
BURKE: Long service leave is the only part of employment entitlements still at a state level. And that — you get a different answer state by state. So New South Wales, where we are right now, for example, casuals do get long service leave, and so it’s one of the quirks, it just works differently state by state. What we do won’t make an impact on that.
HENDERSON: There’s a question here.
QUESTIONER: Minister, if I could raise the point about small business, is there a limit in terms of the number of employees that it would apply to, does the small business have to be 10 people or five people, or what’s the proposal?
BURKE: Well, first of all, there is a small business definition in the Act of 15, but it’s 15 regular and ongoing is the small business definition that’s in the Act. But as part of the Senate amendments last time there’s now another slightly bigger small business definition in there as well, so it’s not quite as neat as it used to be, but the concept of where we provide small business exemptions, as I said to the earlier question, is something where the consultation is still ongoing, we haven’t landed on that yet.
QUESTIONER: Thank you, Minister.
HENDERSON: There’s a question here. We’ve just got to get the microphone to you.
QUESTIONER: Thank you. It’s on, I think. Hi, hello Minister, Wendy Black from the Business Council of Australia. If I could start with a positive; really appreciate some of the things that you’ve now clarified, certainly on the issue of back pay, which is an issue that we put representations to you about, so we really welcome that. Also, that it really is going to be employee initiated, and there’s a six month period, so that’s not sort of a constant, an issue business will have to deal with, yet it does give employees that opportunity.
But one thing though that remains a concern, and we’ve raised this with your office, and I will say thank you for the consultations that we have had, even though we may be tied up in NDAs and you’re able to go out and talk about things that we can’t talk about, so it’s good to have this opportunity. One of the areas of concern that we have –
BURKE: You ran the ads. You don’t have trouble with that. I haven’t an ad yet.
QUESTIONER: One of the issues though, it is this issue upfront in changing the definition of what a business will be able to offer at the start. So, aside from those who are currently employed at the moment, is that definition of what that pattern of work would be, and for many young people, or for say nurses, as another example, they will have a regular pattern of work which they choose, because they only want to work certain hours, they only want to work night shift, or they want to work around their study. How will that be aligned with what you’re proposing, because business fears that will be a risk?
BURKE: First of all, on that, thank you, and yes, I’m glad you’ve seen reflected some of the issues that you raised in what I’ve gone through today.
The concept of six months is I think realistically you don’t get a sense as to whether or not you in fact have turned out to have a regular pattern of work until that point, but the – so what employers offer at the start, they will offer based on availability. If it turns out that that has become a permanent roster, when you say the risk, the risk as I see it, could only be if the employer is in fact not in a position to continue to permanently offer those hours.
Now that might be because, for example, you could have a six-month period in work that is truly seasonal, and therefore, while there might be six months where it looked like it was permanent it turns out not to be. So, I get where in those situations it could be a risk, but the test will actually carve examples like that out.
If the hours are permanent, then the risk is the person gets job security, and if the hours aren’t permanent, I think that’s a reasonable expectation on business.
HENDERSON: There’s a question here.
QUESTIONER: Minister, thank you very much for sharing those personal stories about Tasmania. I have members of my family who do bush regeneration, so their casual work is dependent upon the weather. So, if we get the heavy rains that we do, they don’t get paid because they’re casual, even though they may have worked for the company for say three years. Where would they be in this new reform?
BURKE: This particular reform I don’t think would fix it for them, because I think they’d have trouble establishing a regular pattern.
HENDERSON: We’re nearly finished. I’ve got a Zoom question here, which I think is a good one to finish on. Have I missed anyone? No. One of our Zoom people says, along the lines, I’m summarising, but along the lines that the Hawke and Keating Government, particular emphasis probably on Paul Keating as Treasurer and then as Prime Minister, brought about a substantial deregulation of the industrial relations system whilst leaving a central system, but a substantial deregulation.
The question is, is the Albanese Government and the current Treasurer intent on some kind of re regulation beyond what you’ve already done last year, and to what extent is that a reality?
BURKE: Okay. Thank you, and I’m glad to have the opportunity, because I’ve had many conversations with Paul where we’ve laughed about some of the thesis that’s put back on claiming that somehow we’re not consistent with the Hawke/Keating legacy. People often forget that entitlements like superannuation were established during the same period, ultimately very specifically a form of regulation, and a form of regulation that was put there for good reason and it’s given a great deal of strength to the Australian economy as a result.
Similarly, the great industrial relations reform from Paul Keating, once he became Prime Minister, was the establishment of bargaining. What we did last year was to get bargaining happening again, and a whole lot of people – like bargaining had just fallen off, some companies still engaged, but it had almost ground to a complete halt. You look now at the companies that have come back to the table and are now negotiating and working through new agreements, and agreements that often they’re really proud of.
I’ll give one example just from, you know, one of the workplaces that I used to look after, and one that everyone would know and became a home to all of us during lockdown periods, which is Bunnings. Bunnings under their new enterprise agreement, you’ve locked in sustainable wage growth, with the permanent workforce having a pathway to four day weeks and five weeks annual leave. It is a fantastic win win for both productivity and change in the lives of those workers. It’s a really good agreement. They overwhelmingly voted for it. The company is very proud of it. That’s exactly the sort of negotiation that the Keating reforms were designed to achieve. It’s the sort of negotiation that had stopped for years after workplace relations reforms stagnated during the last decade. And it has come about because of negotiations that started again precisely because of legal changes that we made to the Act last year. And I’m really proud of them, and if that’s not part of the Hawke/Keating legacy, I’m not sure what is.