Interview - Dave Marchese, Triple J Hack

DAVE MARCHESE, HOST: Okay, there’s a few different opinions popping through the text line now. I want to unpack it a bit more, and we actually have the Minister with us to tell us about these changes. 

Workplace Relations Minister Tony Burke, he’s with us now. G’day, Minister. Welcome back to Hack. 

TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: It’s good to be back. 

MARCHESE: Busy afternoon. I’m sure you’re pretty happy this afternoon as well. You obviously managed to get the support for these workplace law changes. There are some amendments, some concessions have been made. I guess my first question is: do you reckon that they go far enough?

BURKE: I reckon we’ve actually ended up with a better bill as a result of all the discussions with the crossbench. I’m really happy with where it’s landed. The outcome today, casuals have more rights, gig workers have rights for the first time, the road transport industry has finally got some minimum standards that will come out of today and, importantly, for those workers where sometimes an employer just gets completely unreasonable contacting you non-stop, you’ve got the right to say, “Hang on, I’m not being paid at the moment. I’m just going to enjoy my weekend.” 

MARCHESE: I want to get in to some of those changes in a bit. But, broadly, how much of a difference do you think these reforms are going to make for Australian workers? 

BURKE: The difference is huge. There’s three bills that you now put together. We had Secure Jobs Better Pay, the first half of Closing Loopholes, and now the Closing Loopholes 2 that’s just gone through a few minutes ago. You put all that together, effectively we have turned a corner now in Australia to say vulnerable workers deserve minimum standards and we’re going to find ways to do it, which hadn’t happened before. 

We’ve got laws now that significantly are part of closing the gender pay gap to make sure that we no longer have a situation – you know, we’re starting to close the gap between pay for men and women. We’ve got laws now that things like wage theft was not a crime. It was legal before we made all these changes to advertise a job at a rate of pay that was unlawful, but you could put the ad in. 

And casuals, you’d be given a full-time roster, want to be casuals going out trying to get rental properties and being told, “You don’t have a permanent job, we’re going to give it to someone else,” and going to their employer and saying, “I’m working permanent hours, I really want you to shift me across,” and having no rights to be able to make sure that happened. This is a real change in improving rights for people when they’re working and improving their pay. I’m pretty excited about it, I’ve got to tell you. 

MARCHESE: Well, let’s delve into a few of those different issues. For gig workers, for example, in Europe there are proposals to just declare platform workers employees. Why not do that? 

BURKE: In Australia employees have a whole lot of various leave entitlements and rostering entitlements as well that don’t really work on a gig platform, and minimum shifts and things like that. To make gig workers all employees you’d either have to lower the standards for employees or create rules for gig workers that are actually not practical. You know, you’ve got a job in retail, you’ve got a minimum shift of a few hours, and they can’t roster you for less than that. Whereas for a gig worker, they actually often want to just log on, they’ve got half an hour here, they want to be able to go do some deliveries or a couple of hours here, and that’s how they want to work. 

What we’ve tried to do is keep the flexibilities that gig workers want and say being an employee doesn’t match what you want, but what we’ll do for you is we’ll say that you still should be able to have some minimum standards. There should be rates of pay that you can’t be paid below. What we’re doing is different to what’s been done anywhere else in the world. 

MARCHESE: You said at the Press Club last year that the gig worker changes might push up the cost of a takeaway pizza, for example. What sort of price rises are people looking at for their takeaway? Like, what do you expect? Do you think that people are going to be happy with that? 

BURKE: For some times of day delivery riders service rates are already high. At peak times people don’t go below what would probably end up being minimum rates anyway – and that’s when most people are ordering. There was a Victorian inquiry that said basically it was roughly between $3 and $5 across an hour, the underpayment was that was happening for gig workers. So, you divide that by the number of deliveries somebody might make – and some people do a lot of deliveries – and it sort of gives you a rough guide. So we’re not talking about something significant from the consumers’ end. 

But, you know, I was always upfront – yeah you will get some sort of difference because underpaying people is cheaper. Slavery is probably cheaper, too. But we’re a nation that decided ages ago that you shouldn’t have to rely on tips to make ends meet, and that’s what today is about. 

MARCHESE: The casual changes, how many people do you think are going to take up that option to convert from casual to permanent? Because there are a lot of workers who like being casual. We know that. A lot of them listening right now. 

BURKE: Yeah. 

MARCHESE: How popular do you think this is actually going to be? 

BURKE: I reckon probably 95 per cent of casuals won’t ever want to use this, and that’s fine. They’ll want to stay casuals. It might be the second job, they might be students where they want to just flex their hours up and down, or they might just be relying on the loading and they’d rather keep the loading than have the benefits of leave entitlements. And anyone who wants to stay a casual, this law doesn’t change anything for them. 

But if you’re somebody who has a whole lot of financial commitments, it might be you’ve got dependents, it might be, you know, you’re trying to get into a mortgage, because it’s pretty hard to get a mortgage or increasingly sometimes even to get a rental property if you don’t have secure employment. The data that we’ve got is roughly 1 in 20 people who are casuals might seek this out. 

MARCHESE: Okay. 

BURKE: Now, not everyone will qualify, so to give people rights, which is what we’ve done today, to be able to say, “Well, yeah, I’m a casual but I’m working really regular hours. You’re intending to keep. Give them to me. I want to switch across,” and you’ve got the force of law behind you, it’s life changing for the ones who want it. 

MARCHESE: What I’m wondering, though, is there is this provision if businesses, you know, think that they have fair and reasonable grounds they can knock it back, so is that actually providing protection and certainty for casuals? 

BURKE: No, the fair and reasonable grounds has a specific meaning that the Fair Work Commission applies. So under the old laws that the previous government had put in place that we’re now changing, that sort of test was basically if the employer said that’s what it was, then that was the end of it. If you didn’t like it the best you could do was try to hire a barrister and go to the Federal Court of Australia to try to get it fixed. Now it means the Fair Work Commission is able to test whether it’s fair and reasonable. 

You know, there will be times where the employer will say, “Well, hang on, we’re about to close that shop in a few weeks’ time, we can’t give you a permanent job.” That’s fair and reasonable grounds. Like, you’d have to cop that. But there’ll be other times where an employer just offers grounds that don’t stack up. They’d never make it past the Commission. The mere fact, though, that you’ve got this in law says to employers we’re serious about this now. 

MARCHESE: I want to put some of the concerns of businesses to you, because we’ve heard already some saying they’re worried that they’re not going to be able to afford this, they’re not going to be able to remain profitable, be able to pay their workers. Some are worried it’s going to create more friction with their staff in the workplace. How do you respond to that? 

BURKE: I think those claims are wild, really wild. Look at it this way: a casual worker is paid a loading on top that is roughly worth the same amount as the leave entitlements that are permanent worker has. So businesses saying, “This will cost us too much,” that’s just not true. It’s just not true, because the worker is just wanting to swap out the loading for the security and the leave entitlements. So it’s just not true that it’s more expensive. 

In terms of does this create a problem for the employer, really, the only employers I can think of where this is a problem, the employers who like people to be insecure in employment, like them to be casual because they want to keep them on their toes and make them not quite sure if they’re going to get the shift next shift, who are using it as a management tool. It’s not a majority of employers who do that, but I’ll tell you, some do. This brings them into line. 

MARCHESE: All right. This is Hack, I’m Dave Marchese. I’m speaking with Workplace Relations Minister Tony Burke about these changes to workplace laws that the government is making. Got a lot of messages coming through. Someone says, “As a food delivery driver, hopefully the new changes mean I can work the 50 hours that I’m working a week and earn above the minimum wage.” Sarah from Redfern says, “I work in HR and have had casual staff decline an offer of permanent as they can’t afford to live on a salary without the 25 per cent casual loading.” Sarah says, “Contact should be managed, not legislated.” And someone else says, “I’m a retail worker and am harassed to change shifts, update details and do training while I’m at home.” Ben from Canberra has also asked a question that he wants me to put to the Minister. Ben, I am going to put that to the Minister in a second, actually, so hold on.

But, first, Minister, the right to disconnect has been a pretty controversial element debated a lot through the media over the past few days. Make sure your boss isn’t hassling you after hours. Is it possible, though, that this right to disconnect blurs the boundary a bit? Like, how do you define what is a legitimate concern for the boss to get in touch and what’s frivolous or not important? 

BURKE: You start with the principle that it shouldn’t be controversial that when you’re working you’re meant to be paid. That’s sort of all we’re talking about here. That if the employer is expecting you to work, constantly checking your emails and responding to them and things like that, that’s work; that’s the sort of thing you need to be paid for. One of the things that’s happened ever since we’ve all carried phones – like, most of the listeners, they might listen the same music as me but they’re younger than me, and most of your listeners won’t remember the times when people used to be on call and they’d carry a beeper, and they were the only people who’d be contacted and you’d get an allowance for it. 

There’s been a real drift over the last 20 years where some employers just expect a worker to always be on even though they’re not getting an allowance for it, they’re not being paid for it. That’s not reasonable. So I actually think this thing is really simple, which is the bad actor won’t get away with it anymore because the worker has a right they didn’t used to have. But the principle behind it all is a principle as sort of old as the end of slavery, which is if you’re working, you’re meant to be paid. 

MARCHESE: I mean, you’re championing the right to disconnect. I think it is fair to ask: you’re a Minister: are you going to not contact your staff after hours? 

BURKE: There are some staff of mine who are paid an allowance to be on call, and they’re the only ones I contact. The workers who I’ve got who don’t get paid that allowance I’d never in a million years call them outside of hours. 

MARCHESE: All right. Well, they’ll be listening to make sure, Minister. 

BURKE: No, that’s fine. At least for my team, they’ll be legally able to enforce a right that was already being respected. 

MARCHESE: All right, well, you might want to disconnect after today, Minister. Workplace Relations Minister Tony Burke, appreciate you coming on. 

BURKE: Not sure the right applies to me. 

MARCHESE: Maybe it doesn’t. Thanks for coming on Hack. We appreciate your time. 

BURKE: Thanks, Dave. See ya.