SARAH FERGUSON, HOST: As we just saw, the Government has introduced the next tranche of its industrial relations reforms today, targeting pay and conditions for gig workers and casuals, labour hire laws and wage theft. Business groups have been running a campaign against the reforms for months, including warning they will prevent businesses from rewarding skill and hard work.
VOICEOVER: The Federal Government wants to introduce a new law called Same Job, Same Pay. It doesn't mean equal pay for men and women. It means by law, employers will have to pay workers with little knowledge or experience exactly the same as workers with a lot of knowledge and experience. Let's find a better way.
FERGUSON: Workplace Relations Minister Tony Burke joins me from Canberra. Tony Burke, welcome to the program.
TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: Hi, Sarah.
FERGUSON: I'm sure you're familiar with that advertisement. Employees will have to pay workers with little knowledge or experience exactly the same as workers with a lot of knowledge or experience. Is that true?
BURKE: If that was the objection from the mining lobby, they should be really happy today, because I said the whole way through that our legislation wouldn't create that problem at all. There is nothing in the Bill today that does what that ad said it was going to do. If they want – even though we were never going to do it – they can just declare victory today. It was always a bad idea and not an idea that came from anyone other than their ad agency, that somehow this law would force people, new or old or different levels of skill to all be paid the same. What the law does is says if as a business, you've agreed in an enterprise agreement to what the minimum rates of pay should be, then they're the minimum. You shouldn't be able to just go off to another technical employment entity or a labour hire company and undercut the rates of pay you've just agreed to.
FERGUSON: Alright, well, business is arguing that these new reforms will raise prices and threaten jobs, can you guarantee that won't happen in any sector?
BURKE: This argument is put every single time --
FERGUSON: Well, here I am putting it now. What's the answer this time?
BURKE: What I want to say is – it was put to us with last year's bill and it was put to us at the Annual Wage Review each time that if you give people a pay rise, it'll mean a loss of jobs. We've been getting wages up at the same time that inflation has been coming down and during that time we have had the best jobs growth of any incoming government. Of any incoming government. That's been while inflation has been going down. So, I just say, look at the record there. The record has been if you pay people properly, it is good for the economy, and the rates of pay that this bill calls for are simply the rates of pay that are already agreed to.
FERGUSON: Well, let me ask you this question, is what you're really doing here, trying to re-establish the pre-eminence of the union movement in industries that have successfully challenged union power?
BURKE: We're trying to re-establish the power of the Australian safety net. That's what we want to do. At the moment, wage theft has meant that in a whole lot of businesses, the safety net is ignored. We want to crack down on that. The labour hire loophole has meant that the safety net where an enterprise agreement is in place, has been able to be completely evaded and we want to bring that safety net back. Similarly with the gig economy, the moment you're classified as not being an employee, which happens in the gig economy, every aspect of the Australian safety net falls off a cliff. The lot of it's gone.
FERGUSON: Alright, let's come back to the gig economy in a moment. You're also trying to change the nature of casual work. Casual work in Australia has been steady for a long time. I think I'm right in saying that casual workers can already convert their positions after twelve months. What's the driver for change here?
BURKE: It's actually pretty hard. You can drive a truck through the current law in terms of the 12-month conversion. If you look at the statistics, it's not whether the number of casuals has gone up or not, it's having a look at who some of those people are. 40 per cent of Australian casuals are over the age of 35. I get if you're a student when you're younger, usually you'll choose the loading any day, you want the flexibility to just automatically take time off during exams and pick when you're available.
FERGUSON: So that people understand that that's a 25 per cent loading in most cases for casuals.
BURKE: That's right, paid instead of leave. But if you're somebody where you've got bills that you have to pay, whether it's rent, whether it's just household bills, whatever it might be, then there will be people in those circumstances who want the security.
FERGUSON: Well, let me ask you - just let me ask you, because I want to understand the rationale for this. You've said before that there are people having difficulty making that conversion from casual to a permanent job, do you have any idea how many people underpin this desire for change?
BURKE: It'll be a small number. Most people --
FERGUSON: What's a small number?
BURKE: We're talking about what will people choose in a situation where at the moment they don't have a choice.
FERGUSON: But you must have some idea what number of people would avail themselves of this new opportunity, right?
BURKE: Business, when they argue against it, they put forward sometimes a 5 per cent figure. If that's all it takes up, I'm not troubled by that. What I want is for the people who can be converted to secure employment, who want to be converted have some rights to be able to do that, and they don't have that at the moment. It's not about the numbers, it's about if you have fixed costs and you need that level of security and you're working the hours where it can already be done. You should have a right, backed up by arbitration with the power of the Fair Work Commission to make it happen.
FERGUSON: It may be small numbers, it may be that that 5 per cent number is correct, but the second question is numbers plus timing. Now, there were reports today, I think one in four NSW businesses say they're looking to cut staff. We're expecting low productivity scores to come out of the accounts figures on Wednesday. Isn't this a bad time to be making conditions tougher for employers.
BURKE: In terms of what time are we in right now? Right now we're in a time of record low unemployment, and that is --
FERGUSON: But we're also in a time of sustained productivity slump, with everyone looking for ways to supercharge the economy that has been slow for a very long time.
BURKE: What I was going to say is -- we have two key characteristics of the economy at the moment. We have record-low unemployment and we have had a decade of stagnating wage growth. What the Government has shown you can do over the last 12 months is increase secure employment. Those extra jobs I mentioned, 85 per cent of them have been full-time. It's an extraordinary turnaround in security. It's exactly what we said would happen. That's what we're delivering now. The changes in this Bill don't affect a massive number of workers in Australia. But for those they do affect, it is life-changing.
FERGUSON: Let's talk about wage theft. Another of the loopholes that you're targeting today. Who decides when a union delegate can get access to a company without warning where there is suspected underpayment? Who decides?
BURKE: Okay, I might just clarify the language there. A union delegate is already an employee of the company. So, a union delegate is already there, always there, it's a fellow worker who's just trained in rates.
FERGUSON: Yes, I beg your pardon. But gets access to look at the books to understand whether or not there's been underpayment. Who decides if they get that access?
BURKE: The access to be able to go through those sorts of materials is where it's a right of entry of a union official, and that's already controlled at the moment. If you want to do it, you can do it with 24 hours’ notice. But if you want to do it with less than that, you have to go to the Fair Work Commission. At the moment, the only grounds where they can grant it are if they believe there is a risk of destruction of documents. What we're changing in this law is also adding if they believe there is a risk of underpayment.
FERGUSON: Yes, so, what level of evidence will be required for that power to be used?
BURKE: That will require the Fair Work Commission to be satisfied that there is a reasonable expectation that underpayment is happening. And the reason why we have to separate it --
FERGUSON: What would be the threshold for that? I think it's a very important point, this the idea of people having a new, easier form of access. Just explain what the threshold would be. What type of evidence are we talking about?
BURKE: I think in terms of - there's been centuries of arguments where have all ended up with you don't really define the term reasonableness. Reasonableness has a common sense definition that people understand. But the reason that you have this new test is because you have many situations with underpayment where the books are impeccable. The books are fine. Because what has happened in many instances – and I've seen these firsthand – where a rogue employer gets people to clock off and then directs them after they're no longer being paid, that they've got to keep working. It's a clear case of underpayment, and I would say a case of wage theft. If you give 24 hours’ notice of that, what happens when you turn up? It won't happen that night, and the people it's being done to probably won't even be rostered on. So, the Fair Work Commission would take whatever evidence a union had available that they believed this would happen, was happening, and they would make a decision as to whether there was reasonable grounds for right of entry without the 24 hours’ notice.
FERGUSON: Alright, let's go back to the gig economy that you raised earlier. Will the Fair Work Commission have, will they be setting a target for a minimum wage for gig workers? Is that what we're going to see?
BURKE: It'll depend area by area for gig workers, but I think the way you describe it there, I think that'll be one of the first things we're likely to see the Fair Work Commission do. Now, they'll only be doing it for those areas where they already see evidence that the workers are effectively being undercut from what they get as employees. There's plenty of people in the gig economy who earn a lot more than they would as employees and it's hard to imagine this legislation providing any avenue for the Fair Work Commission to go there. But certainly there's lots of evidence out there of people delivering food, of people in rideshare, and people in the care economy who are currently being paid less than what they would get were they employees. It's reasonable to presume the Fair Work Commission is very likely to set some minimum standards there.
FERGUSON: There's been some confusion about who's in and who's out and who the reforms will target, including whether or not Airtasker is in or out. So, is Airtasker in or out? And what about people with groups on WhatsApp or Facebook Messenger?
BURKE: It's not based on the platform; it's based on the worker. If, for example, delivery riders that some minimum standards were set for Uber, then the Fair Work Commission would have the power to apply that across all platforms for that sort of worker. Otherwise, you just replace one loophole with another. And everyone would rush off to the platform or be it pressured to rush off to the platform to just undercut what had just been achieved. So, it's about the worker. If you start with the principle, does the worker have low bargaining power, low control over their work or low wages, meaning less than what they get were they an employee? Effectively this means, do we have a worker who is being exploited in terms of the standards that we would otherwise apply in the Australian workforce? If the answers to that is yes, then the Fair Work Commission would have the power to set some minimum standards, but they'd have to set them in a way that preserve the flexibility of the platform.
FERGUSON: Understood. Tony Burke, thank you very much indeed for joining us today.
BURKE: Thanks for the chance.