ABC Radio National with Patricia Karvelas
E&OE
Subject: New workplace relations bill
PATRICIA KARVELAS, HOST: Many of you went from working at an office to working at your kitchen table during the pandemic. Now the government wants to secure some of those changes, cementing flexible work options for young parents, carers and people with a disability. It is just one part of the Albanese government’s new industrial relations bill to be unveiled today. Another element is multi-employer bargaining, which the government says will lift wages, although business warns it will lead to more strike action.
The Workplace Relations Minister, Tony Burke, is my guest this morning. Minister, welcome back to Breakfast.
TONY BURKE, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS: Great to be here.
KARVELAS: So what’s in your bill? What are you unveiling today?
BURKE: Look, it will be just after 9 o’clock today that I introduce it. And it’s principal purpose is to get wages moving. We’ve had a decade where wages were kept deliberately low, and there are changes to the law we need to make to be able to get wages moving. It’s not all that’s in there. There’s a whole lot there for the people who have been most disadvantaged on wages not moving, which is women. So, there’s some significant measures there to close the gender pay gap, and also what you just referred to in terms of flexible work.
People have different expectations today to what they had 10 or 20 years ago in terms of flexibility at work. And at the moment workers have a right to request, and if it’s denied that’s the end of the matter. We need to be able to make sure that people have stronger powers to be able to get flexible work.
KARVELAS: Okay. So, let’s get to all of these elements, beginning with flexible work. How much of a difference is it likely to have? Has there been modelling on how many people would use this mechanism if they had this extra level of right to force the Fair Work Commission to rule on it?
BURKE: Can I sort of paint a picture of how it would work?
KARVELAS: Yes, please.
BURKE: So, I spent six years representing retail workers. When I started in that job, I fully expected the main issues to be underpayments or something like that. About 80 per cent of the work was roster changes that people were presented with that were going to turn their lives upside down. If you think of the simplicity of somebody gets a roster change that now means there is no-one to pick up their three-year-old from childcare. And we’re making a big investment in early childhood education. That becomes meaningless for people who can’t get the shifts that match the needs that they’ve got there.
So, what it means for a worker, for example, being presented with that roster change, at the moment they’ve got the right to say, “I can’t do that.” If the employer says, “Needs of the business,” end of the story. No-one gets to check, there’s no right of appeal. What I think will actually happen by being able to appeal to the Fair Work Commission is most of the time you won’t have to because you will get more sensible decisions. And most employers already do this well. But for those who don’t – and often it’s actually in really good companies where the rostering is done by a very junior level of management, sometimes by someone who’s never had caring responsibilities themselves – and you will get if there are rights for the employee, you’ll actually get different outcomes where people sort these issues out well before they get to the Commission. But in modern Australia we just can’t have a situation where if you’re given a roster change that upends all your caring responsibilities you’ve got nowhere to go.
KARVELAS: Okay. So basically you’re saying the threat – well, that’s my word – of going to the Fair Work Commission you think will force the hand of employers to say yes?
BURKE: For the minority that are doing this the wrong way, that’s exactly what will happen. If you have any situation with no consequences, you get worse behaviour.
KARVELAS: And for those that end up with Fair Work, what are the parameters? How about if it is adverse to the business and, you know, flexible work is just not useful for them? What happens?
BURKE: It’s a really practical jurisdiction. So the test for fair work is whether or not the employer in saying I can’t do that is acting reasonably. So, you know, sometimes you’ll get employers, for example, who are just playing favourites within the workplace and the people who could work any shift at all with no caring responsibilities are getting the one shift that would actually make a massive difference to someone else. So nine times out of ten there is a practical outcome here. And the Commission is a very practical jurisdiction on that.
KARVELAS: Okay. And there are some industries, of course, that simply can’t offer flexible working arrangements.
BURKE: That’s right, and the Commission’s decisions will reflect that.
KARVELAS: Okay. And will they be exempted in the legislation? Will it be –
BURKE: No, the word “reasonable” exempts them. So it’s whether or not it’s been reasonably refused. And in the examples you just gave, well, that would be a reasonable refusal if it simply can’t be done.
KARVELAS: And do you have a sense of just how many extra workers will because of this ability, this right that you’re building into the laws, be able to work flexibly?
BURKE: At one level that’s unknowable. There was a study – I think you actually interviewed some people about a year and a half ago – that went into flexible work in retail and fast food. And the stories of the pain that people were feeling and the pressure people were under were just extraordinary. So there’s a good number of people out there where a change like this is life changing for them.
KARVELAS: One of the other big parts of the bill is on multi-employer bargaining, which came out of the Jobs and Skills Summit. What will multi-employer bargaining involve?
BURKE: Okay, so first of all the act already allows multi-employer bargaining. It allows it in three different streams. Rather than invent something new what we’re doing is basically opening up those three different streams so that they work. So, for example, the low-paid stream, which was meant to provide multi-employer bargaining in a really coordinated way for low-paid workers, -- four applications were tried. Even aged care workers couldn’t get into it and everyone just gave up on using the stream. We’ll be opening that up.
There’ll be one stream that’s designed to – where we’re amending an existing stream basically for all the principles that COSBOA, the small business organisation, asked for. So it will be opt in, there’s no industrial action there. And that’s basically to take account of, you know, small businesses don’t have an HR department. They need – if they want the benefits that come for productivity here they need a simpler system, and that will be there in that –
KARVELAS: So in that stream, what sort of businesses will be involved in that stream? And you say it’s opt in? That means what? No business can be forced?
BURKE: On that stream that’s right. That’s right.
KARVELAS: Yep.
BURKE: And if they don’t like how the bargain’s going, they can leave. But it takes out a whole lot of the red tape that’s there at the moment. Just simplifies the stream.
The other one which at the moment is called the single interest stream – it will become the common interest stream – but it’s got ridiculous red tape. So, at the moment if businesses want to bargain in that they need my personal approval as to whether I will let them. So that will be a fairly commonly used stream I suspect.
Throughout all of this what will continue is if you have a single employer agreement that will still be paramount. That will still be the main way that negotiations happen. But this is – effectively there are some industries where bargaining hasn’t worked. So, where you get bargaining you get better pay outcomes and better productivity outcomes. But across a whole lot of sectors of the workforce, particularly those parts of the workforce dominated by women, bargaining hasn’t worked.
KARVELAS: So give me a practical example of where this can’t happen at the moment – I mean, of actual workers banding together with other workers from another workplace. Explain to me how it works.
BURKE: Childcare. Let’s stay where we were talking before. If a group of childcare workers at childcare centres want to bargain with their employers, they’re all similar workplaces, they all have similar rule. If they want to do the negotiation together, at the moment, all those negotiations have to be technically separate negotiations.
KARVELAS: So this, they’ll be able to across the whole child care sector work together?
BURKE: Yes, whether it went across the entire sector in Australia I think there’s a public interest test that will sort of limit how big theses of bargains can be. That will be decided by the commission on the public interest. So, you know, if it’s a geographical area, similar businesses, those sorts of things will be taken into account. But –
KARVELAS: How about the size of the childcare centre? There are ones that are, you know, individually run, there are some that are part of huge businesses.
BURKE: Some of the huge ones have traditionally had enterprise agreements. And I suspect that won’t change for them.
KARVELAS: The big concern from business groups is that this will lead to a lot more industrial action. Is that ultimately where this will end?
BURKE: Australia has low rates of industrial action, and that won’t change. That won’t change.
KARVELAS: But this opens the door to it changing?
BURKE: Well, no, no, no. Because you can already have industrial action on a single employer agreement. What we are doing, though – and I think what has really frustrated people – is that when you get this long, protracted industrial action, including in single employer agreements. Now, at the moment those long disputes have no way of being resolved, and we’re introducing when the Commission believes it has become intractable that you can now have arbitration where they look at, “Okay, here are the issues that have been agreed. Here are the issues that haven’t been agreed. Let’s sort it out.” And that way the long, protracted, never-ending disputes, which are often the ones in the media, they should become much less common. I’m hoping they become a thing of the past.
KARVELAS: Okay, but clearly though you’re saying, you know, we have low industrial action, and that’s right. This allows for industrial action across workplaces, does it not? That is the ultimate consequence of this bill.
BURKE: That’s right, but the rules in being able to do it are no different to what they would be if you were doing a single employer negotiation.
KARVELAS: Sure, but all of a sudden you have a lot more workers striking potentially.
BURKE: Look, there are lots of forms of industrial action and lots of them much more low-key than that. The big difference here – well, first of all, before any industrial action – even single – at the moment you can go – you go straight to it after you’ve had your vote of workers. There’ll now be compulsory conciliation to try to sort these disputes out. That may of itself across the board put real downward pressure on industrial action because we get issues solved first. And then if they’re continuing arbitration, which has not been there before, becomes available. It’s a much more sensible outcome.
KARVELAS: Okay. What safeguards have you put in it? There is a report in The Australian this morning that you have – you have excluded, for instance, the CFMEU. Can you give me clarity on that?
BURKE: Yeah, I’ve got a view that that part of the Australian economy at the moment doesn’t have the maturity that I’m wanting to open up something new. So, we’re getting rid of the ABCC and we’re bringing in – out of the Jobs and Skills Summit there’s a new tripartite body that is trying to deliver some culture change in that sector of the economy. I want to see how that goes. I want to try to deliver the cultural change. And I’m also very conscious that the reason we’re trying to open up to multi-employer bargaining isn’t for the areas where bargaining has been really strong for a long period of time. It’s for the areas that have been left behind.
And, you know, if there was any statistic that came out on Budget night that really hit me it was that over the last 10 years really wages have gone backwards. That’s particularly in feminised industries. It’s particularly in areas without strong negotiating clout –
KARVELAS: Okay.
BURKE: And that’s why that’s where the push is.
KARVELAS: So the safeguards? How do you define who is excluded from multi-employer bargaining?
BURKE: Yes, so what I’ll introduce this morning has the lawlessness test in it. There is a view that’s been put from business and it’s come back to me from the unions. So unions, first of all, are not asking for this to be done at all, so I don’t want to mischaracterise that. But if it is to happen, there’s a view from business and from unions that it might be better to actually do this in a way where you just say quite specifically, “This is who we’re excluding.” And so we’re still working through whether we can reach consensus on that. It may through the Senate inquiry process – we may end up with some amendments on that.
KARVELAS: And would a union like the CFMEU fulfil that safeguard criteria?
BURKE: Certainly the construction division is – you know, they don’t need my employer bargaining to start with. But there’s not the maturity in that part of the economy that I want to open something like this up.
KARVELAS: Okay. So can you guarantee there won’t be an uptick in industrial action, especially when the economy is so fragile?
BURKE: Look, the big fragility in the economy is that wages aren’t moving. Now, you know, the – we have low rates of strikes. We’ll still have low rates of strikes. I’ve just given the entire mechanism that’s been introduced that means some of the long-protracted strikes that already happen we’ve now got mechanisms that haven’t been before that resolve the issue beforehand –
KARVELAS: So there might be more strike action but for shorter periods?
BURKE: No, no, no. The compulsory conciliation beforehand may mean that issues that can be sorted out beforehand just get sorted out. Like, compulsory conciliation will have a different impact when you’ve potentially got arbitration at the end. You know, if you go into a meeting being asked, “Can you all agree and if you don’t there’s no consequences,” you’re less likely to get agreement. When you’ve got arbitration at the end, it doesn’t mean you end up with the commission making the decisions; usually it means the parties sort issues out more quickly.
KARVELAS: And business is really concerned particularly that multi-employer bargaining will lead to industrial action. They also feel like you’ve just kind of brought this bill in without a proper consensus style where there is real agreement. What’s your answer to that critique?
BURKE: Look, this proposal on multi-employer didn’t start as a government proposal; it came out of the Jobs and Skills Summit. There are a lot of measures in this bill that came out of the Jobs and Skills Summit, including the flexibility one that we were talking about earlier. That’s where it came from. We then have two rounds of consultation with all the different stakeholder groups putting all the different views to each other and then turned that into a bill.
At the same time that some of the business groups were saying they hadn’t seen the bill, they were in meetings last week with every single word of the bill providing comment. It’s a formal process that happens in my portfolio, and that always results in further amendments.
KARVELAS: Okay. Two quick ones: the BOOT test. You first revealed on this program that the better off overall test you were looking at. What changes are you making to it?
BURKE: The consensus agreement that had been put together between the Business Council of Australia and the ACTU is reflected in the legislation that I’ll introduce today.
KARVELAS: And how quickly will employees see real pay rises with this bill?
BURKE: Not quickly enough. That’s one of the reasons I’m so determined to get this legislation through. Once you change the framework, then cases have to be run, agreements have to start being negotiated, there’ll be workers who are on an enterprise agreement where, you know, they’re still stuck on whatever the current rates are. It’s a step that should have been taken years ago. But until we take this step we’re not going to get wages moving. And people have waited 10 years. They’ve waited long enough.
KARVELAS: Tony Burke, many thanks for coming in.
BURKE: Great to talk.
KARVELAS: Tony Burke is the Workplace Relations and Employment Minister. You’re listening to ABC RN Breakfast.