Interview - ABC Radio National Breakfast

Subjects: Closing Loopholes Bill, Voice Referendum.

PATRICIA KARVELAS, HOST: Since coming into Parliament, Labor has had an ambitious but sometimes controversial campaign to change the country’s industrial relations laws. Today, the Minister in charge, Tony Burke, will reveal the next set of laws after passing the first tranche earlier this year, which set up multi-employer bargaining. Some of the latest changes will impact the thousands of gig workers, people like Uber drivers that we see every day; we may use every day too. Workplace Relations Minister Tony Burke will unveil these at the National Press Club today, but first he joins us. Tony Burke, welcome. 

TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: Hi, Patricia. Great to be with you.

KARVELAS: What exactly are the minimum standards you want to introduce for gig workers? 

BURKE: The minimum standards will be determined by the Fair Work Commission, the same as they are for every other worker. The problem that we’ve got at the moment is the only question the Fair Work Commission asks at the start is, “Are you an employee?”, and if you are an employee, there’s a whole series of rights that you get, but if you’re not technically an employee, all of those rights fall off a cliff. What we want to do is turn that cliff into a ramp so that for gig workers who are employee like, they’re not going to get every right that an employee would get, but we can’t have a situation where those people in those sorts of jobs where they’re on low wages, low bargaining power, often low authority over their work, have no minimum standards at all. 

Sort of one of the benchmark tests, I think, for how Australians see our workplaces differently to some countries in the world is we’re not meant to be a country where you have to rely on tips to be able to make ends meet. For a whole lot of gig workers at the moment, that’s the world they’re in. We want to be able to set minimum standards that accept the form of engagement, that accept that you are not an employee, but stop it from being a complete race to the bottom.

KARVELAS: Business says this could lead to job losses because you’re not just making it just restricted to gig workers and safety; that it has broader application. What’s your response to that? 

BURKE: It will be limited to gig workers and it will be limited to those gig workers that are judged by the Commission to be employee-like. For example, a tradie using Airtasker, which, effectively, just runs as a digital form of the Trading Post, they’re not going to be considered employee-like so they will be completely unaffected. But for those workers who have much less bargaining power, there will be workers who do satisfy these tests. For example, I think, realistically, while the Commission will make the decision, if you look at the different platforms that do the food delivery, they will be covered. If you look at the platforms that do rideshare, they will be covered. And if you look at some of the platforms that are now there in the care economy and the NDIS, those platforms would easily satisfy both the employee-like test and the test of being digital platforms.

KARVELAS: I spoke with the head of ACCI before, you know, representing some businesses across the country and he says there’s no evidence that there are safety issues around gig workers on the basis that you described. He really contested it saying it’s not based on any evidence. What’s your response to that, minister? 

BURKE: I think anyone who’s driven during peak hour has seen the evidence. Anyone who’s driven during peak hour has seen people who are struggling to make ends meet with pizzas on the back of their bicycle or on the back of their motorbike and they’re running red lights. You’ve seen people establish a new lane between the lanes of the traffic, knowing that at any moment, if a car door opens, instead of riding between the lanes, you will be lying under the traffic. 

You mentioned in that interview the number of fatalities that we’ve had for people in this area. But that’s just a small portion of the number of injuries that we’ve seen. If people – to make ends meet, to even reach a minimum wage that is meant to apply to every workplace in Australia – are having to take those sorts of risks, then, I think, the line between remuneration and safety is pretty much on show for every Australian in every busy traffic setting every day.

KARVELAS: Tony Burke, the Government insists the changes will not affect the high degree of control and autonomy that independent contractors have over their work, but are designed to protect workers who don’t meet the definition of “employee”. What will you do to ensure that that independent contractor autonomy remains? 

BURKE: This has been one of the things we’ve really had to struggle with to work out how to get this right and there’s been really good engagement with a lot of the platforms as we’ve worked our way through on this. Because, you know, around the world some countries have tried to say, “Let’s just turn everyone into an employee”, and what the platforms have then done is they’ve reorganised to evade the definition and everyone’s ended up back where they started. The truth is consumers like using the platforms. I use the platforms. Most of the workers there like the form of engagement and the platforms themselves are making a good business. So, no one wants to turn everybody into an employee, but some minimum standards would do that. 

For example, if you paid people for time on the app, even if they hadn’t accepted jobs, then that would effectively change the form of engagement. If you gave people rostering rights or overtime rates, that would change the form of engagement, because all of those issues could be easily gamed and they take away a lot of the flexibility. So, it will not be possible for the Fair Work Commission to provide these workers with all the entitlements that an employee would get because you can’t do that and keep the form of engagement. 

What it will be possible for the Fair Work Commission to do though, for example, is to set a minimum rate of pay. They might, instead of expressing that as an hourly rate it might be a per five-minute block or per-minute rate or something like that. They’ll work how they do it. But they’d be able to stop it from being a complete race to the bottom and set some minimum standards. They might set minimum standards, for example, on how long it takes from the time you do the job to the time the platform pays you and also be able to – we’d also have some standards that will be in the legislation about what’s effectively an unfair dismissal jurisdiction. 

There’s a terrible term on the gig platforms called “deactivation”. It sounds like it’s out of some science fiction movie, but, effectively, these are circumstances where someone who’s been with the platform for a period of time is taken off – and for them to have some recourse in dispute resolution procedure as to whether that was fair.

KARVELAS: So the other big issue, of course, is Australia’s sluggish productivity. It’s a really significant problem. How will these changes impact productivity? Have you applied that test on these laws? 

BURKE: Some of the productivity arguments that have been running about these particular laws I found really odd. There’s, obviously, the principle that a secure workforce is always going to be more productive. A secure workforce is always more willing to invest in skills and to invest in the business that’s providing them with security. It’s also the case, though, that everything that is in the legislation that I’ll introduce next week is simply about keeping to standards that Australia already thought we had. 

To criminalise wage theft is to make sure people are paid the rates of pay that are already there in law. To regulate the gig economy in the way I described is to accept the flexibility that’s there, and there’s a lot of productivity in the flexibility, but to say you’ve just got to have some minimum standards so we’re not undercutting the whole concept of minimum rates that’s been part of Australia. 

Similarly, the labour hire loophole is entirely about making sure that where the business has already agreed “This is the productivity value of a particular classification of work”, saying, well, you can’t, having agreed that’s the productivity value, go and undercut it. 

With all of the principles, we’re simply saying where the productivity value has already largely been determined in Australia, you’ve got to hold to it. You can’t undercut, and that’s effectively what the Closing Loopholes Bill will be about.

KARVELAS: We have one minute left, Tony Burke, and I want to ask you a question. I want to combine your work on this and the question and it’s this: you’re obviously unveiling these new laws today. There’s also now a campaign for a referendum. What does that look like for a government like yours and are you going to spend the next six weeks just campaigning for a yes vote or how does the government do its business? 

BURKE: We keep doing our job and so everyone in every portfolio keeps doing their job, and these workplace laws I’ve been working on for a long time, so they will be introduced to the Parliament on Monday and you do your job. Part of our job is to close the gap and part of our job is to respond to the question that both sides of politics put to First Nations communities over the last 12 months, where we said, “What would make recognition in the Constitution meaningful?” The answer that came back was to say recognition through a Voice would be meaningful because it would help deliver results.

KARVELAS: Okay. We’re out of time. Tony Burke, thanks for joining us. 

BURKE: Good to talk. See you.

KARVELAS: That’s the Minister for Employment and Workplace Relations, Tony Burke.

ENDS