Interview - Patricia Karvelas, ABC RN

E&OE Transcript 

PATRICIA KARVELAS, HOST: The Government will this week introduce its final tranche of industrial relations reforms and arguably its most contentious. They include new definitions for casual workers, protections for gig workers, as well as provisions for a right to disconnect. Rules the Greens have been pushing the Government to adopt. 

Tony Burke is the Workplace Relations Minister. He's also the Leader of the House in the Lower House and I spoke to him a short time ago. 

Minister, welcome back to RN Breakfast. 

TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: Great to be here. 

KARVELAS: How close are you to getting the support of the two key crossbenchers Jacqui Lambie and David Pocock to pass your industrial relations bill? 

BURKE: Look, nothing's resolved until everything's resolved so at the moment we don't have majority in the Senate. I'm hopeful, the conversations have been really constructive but there's no negotiation with David Pocock and Jacqui Lambie that's an easy one and so they've got issues that they've wanted to work through. We're doing it constructively. I hope we get there soon. 

I know that these laws will make a huge difference to workers and, you know, it's part of making sure that we get wages moving in the country but, you know, I'm not in control of their vote. The conversations are going well but we're not there yet. 

KARVELAS: Okay, so let's go to some specific elements of this bill. The bill includes a right of entry for union representatives into a workplace. Jacqui Lambie has expressed concerns over that. Why do you think that should happen and are you insisting on it? 

BURKE: The issue with right of entry, and Jacqui's always had a strong view which I respect about the fear of someone with a right of entry just going in and disrupting businesses. This is a very limited extension, really limited. 

So what this is about is when the Commission believes that there - the Fair Work Commission - believes that there is a reasonable case that there is wage theft going on, that there is deliberate underpayment going on. And where the Commission believes that's what's happening, then they can give a specific effectively one off right of entry without notice for the union official or the person with the right of entry to be able to go in without giving notice. 

This would be used rarely but there are some parts of wage theft we will never uncover without this right. The simple one I give, like a lot of wage theft we talk about you go through the books, whether the books are held on site or whether they're held in the cloud or off site or wherever they are and you go through the records and discover the underpayments. 

But there is another form of underpayment that is incredibly common, which is where people are told to clock off and come back and keep working. You will never - the books are always impeccable when that happens. The only way you ever get to the bottom of this is when you turn up announced, because you give 48 hours notice and guess what? On that day everybody's working correctly. 

So, there are some forms of underpayment and wage theft that will never be uncovered unless we have this particular improvement to right of entry. 

KARVELAS: Okay, but are you prepared to dump that element given Jacqui Lambie's concerns, despite what you've just said, are so acute on this one? 

BURKE: I'm still trying to win this on the merits of the argument, I've got to say. The decision we ultimately make is either we're going to turn a blind eye to some of these examples of underpayment and wage theft, or we're going to have a careful mechanism that allows the Commission to say, "Yeah, these circumstances are exceptional, and we'll let you turn up unannounced in this instance".  

KARVELAS: Let's look at the right to disconnect which has become very contentious. It would allow workers to stop unreasonable contact from work after hours. You've talked about fines for employers who do this. Can you define what's unreasonable contact and what you're willing to negotiate on this? 

BURKE: There's a few different ways of doing this that are being spoken about at the moment. Certainly my starting point is there's a whole lot that is completely reasonable from the employer. It's completely reasonable sending emails. It's completely reasonable contacting people for shifts. All those sorts of things are completely reasonable, and we don't want to get in the way of that. 

I had two front pages in a row now from the West Australian arguing really strongly that this is a terrible outcome for the west. Can I say there's a whole lot of businesses that already have these sorts of clauses working professionally within their enterprise agreements. One of those, and the West Australian newspapers are aware of this, is an iconic WA business which does function across time zones. There are ways of this working. 

I should add that iconic business that they know about is themselves. It's in the West Australian's own enterprise agreement a right to disconnect. There are practical ways of being able to do this. And there are some methods where it's not a fine on the employer for contacting, for example. There are methods where it's simply a right for the worker, and the West Australian enterprise agreement's model is actually not a bad model, where the right is there where the employer can reach out, but if you don't respond because it's not your paid time you've got a guarantee that you can't be punished for it. Now I reckon that's a pretty good model. 

KARVELAS: So obviously you're saying this already exists, that it's uncontroversial where it exists, but if you made it a more widespread right obviously it could have unintended consequences. How can you ensure that it doesn't have those consequences given we live now in a different kind of world which is pretty connected? 

BURKE: The world is connected but that has created a problem, and I think in part of this conversation, like in my first answer I've talked about what's reasonable for an employer, I'll just add now what's reasonable for a worker. Some people are paid an allowance to be always on call. 

But if you're in a job where you're only paid for the exact hours that you're working, some people are now constantly in a situation of getting in trouble if they're not checking their emails, it being expected to be working for a whole lot of time that they're not being paid. That's just unreasonable. 

The starting point of workplace relations law in Australia is meant to be that when you work you are being paid to work. And so there's a --   

KARVELAS: So if there are penalties applied - sorry to interrupt - but if there are penalties applied how big do the penalties have to be to ensure that bosses don't do this? 

BURKE: One of the ways instead of the fines of doing it is simply having an absolute ban on there being a penalty on the worker for disengaging. 

So, if the worker disconnects, if they decide they're not going to have their phone with them, if they decide they're not going to be checking their work emails, then absolutely no penalty can be brought against them. And that sort of protection would give you a way of doing it without fines on the employer. 

KARVELAS: Under your proposal under the wider legislation you've also proposed a casual conversion right changes which are very controversial as well. Casual staff will have the right to convert to permanent work after six months in the job rather than the current 12 even if they have signed a contract to work as a casual. There are concerns about what this will mean in small businesses. What protections have you put in or are you negotiating on currently to ensure workplaces that have and use casuals are still able to? 

BURKE: The fear campaign on this one has been probably as much divorced from reality, probably more so than any of the other fear campaigns. 

Most casuals want to be casuals, and nothing will change for them. And I agree with the business figures, they say there might be 5 per cent of casuals who would like to be permanents. 

What the legislation says is that – and there were some tweaks made to this in the House of Representatives after negotiations with the Hotels Association. But the principle is this: If you're already being rostered and the employer intends to continue to roster you in the exact way that they would roster a permanent, then you should be able to say, "Look, I'd rather get the security of being a permanent worker" and this is the really simple reason. 

I used to say just try getting a mortgage but now try even getting a rental property if you can't tell the agent that you've got secure employment. So, a whole lot of people in share houses, a whole lot of uni students, they will be completely happy staying as casuals or people where it's just a second job, they'll be completely happy staying as casuals. 

But one of the things we've had increasingly is people who are supporting a household, people who say to me, "My rent's not casual, my mortgage isn't casual, my bills aren't casual. I'm working permanent hours, why can't I switch to be a permanent job?" That is a completely reasonable right --    

KARVELAS: Okay. 

BURKE: -- if the intention is that they're going to be rostered in that way. We had a company called WorkPac that was giving people 12-month rosters, full time rosters in advance and saying, "But you've got to sign the contract that you're a casual".  Now that's just not a reasonable way to operate. 

KARVELAS: In terms of your broader intention around this legislation, when do you expect to get it passed, Minister? 

BURKE: As a rule, and your listeners will have heard me say this to you before, it is a very brave member of the House of Representatives who predicts the Senate. I work on the basis, as I have with previous legislation, when I announce it different commentators say, "Absolutely not a chance, never going to happen", and I just continue the constructive conversations with the crossbench. 

When people put up an objection my starting point is to explain why we've done it the way we've done it, the precautions that I think were already there. And then the crossbench without exception have come forward with various ideas which are within the intention but actually clarify things, make the legislation a bit tighter. 

KARVELAS: Can you give me an example of something that you're currently willing to do to change the legislation that the crossbenchers suggested? 

BURKE: Well the classic one was what we just went through with the right to disconnect, where we had been talking about a fines regime but the concept of being able to have it where the right rests with the worker. 

KARVELAS: Minister, if I can just change the topic to a very, very significant story in this country, to the suspended death sentence handed to Yang Hengjun. Obviously this is a pretty devastating judgment. Do you see the decision to suspend the death sentence as a way for China to maintain leverage in the relationship with Australia? 

 BURKE: I'd leave it to Penny Wong to deal with that. But can I just say this decision against Dr Yang is chilling. We're appalled by it, and I think all Australians would have been at least given some comfort by how strong Penny Wong's response was yesterday. 

The Australian Government's going to do everything they can on this one and we oppose the death penalty in all instances around the world but obviously we leave no stone unturned when it comes to any of our own citizens and the direct advocacy that we do there. 

KARVELAS: Minister, just finally, putting your hat on of Leader of the House. The tax legislation will be tabled today in the first parliamentary sitting day. How do you expect it to proceed through the Parliament, what's your intention? 

BURKE: Well often when the legislation is introduced the Opposition haven't had a chance to look at it until that moment, so we usually allow a delay before we continue with the debate. But on this occasion, they got the legislation on the weekend so I'm expecting that we won't have to wait too long after the Treasurer has introduced the legislation before we're able to move to getting some of the debate done this week. 

I wouldn't be surprised if we have some nights that go a little bit later this week and next week to be able to try to make sure we get everyone to speak. This is one where every Member of Parliament I suspect's going to want to have their say on whether or not every Australian should get a tax cut. I know my colleagues on the Government benches are all wanting to speak and are wanting, are excited about being able to deliver this for low- and middle-income Australia. 

We may end up with some other people who are, on the other side who are technically voting in favour of it but are very angry that it's happening, which I think will sort of give away their actual view on whether every Australian should get a tax cut. 

KARVELAS: Tony Burke, thanks for joining us. 

BURKE: Great to talk to you. 

KARVELAS: And that's the Workplace Relations Minister Tony Burke. You're listening to ABC RN Breakfast.