Interview - Sarah Ferguson, ABC 7.30

SARAH FERGUSON, HOST:  Minister, welcome to the program. 

TONY BURKE MP, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS, MINISTER FOR THE ARTS: Good evening. 

FERGUSON: The Productivity Commission looked at the right to disconnect in 2021. It said it would only be needed if evidence suggested that employees faced unreasonable pressure from employers. Do you have such evidence? 

BURKE: I think the Senate Inquiry into Work and Care was where the evidence base was clearly given and so it was after that that we adopted it at our national conference as policy to establish a right to disconnect and then it became one of the issues that Senator Pocock – Barbara Pocock had continued to work on and the argument was made. So, we’d been very public about our position back at national conference. It was something that became very much alive once the Green Party said that it was an amendment that they wanting to put to this bill but our disposition in favour of this had been out for many months. 

FERGUSON: That is about the timing but what is the problem you are trying to solve and what is the evidence you have that there is a problem that needs solving? 

BURKE: If you go to that Work and Care Report from the Senate, effectively, you find this, most workplaces, there is give and take and it is fine and so for most workplaces you don't need to put something in legislation. But there are a good number of workplaces these days where you get an employer, where the contact and the demands becomes out of control. There will be some of your viewers who, even while they are sitting there now, know that if the phone has a bing, and there is a work email arrived, they are expected to look at it straightaway. You end up with a situation for some workers where they are never able to turn off, to have a weekend, to know that the work of the day is complete. And so, for those people, just knowing this right is here changes the balance and will change that employer behaviour as well. So it is not a demand to the employer of “you must not make contact” it is simply a concept from the worker's perspective that if you are not checking your phone, if you are away from your phone, if you are having a weekend where you are resting, you are allowed to and you won't be punished for having not been on 24/7. 

FERGUSON: Who came up with the idea of including criminal penalties for employers who break the rules? 

BURKE: The way this happened, it wasn't included in the amendment. There was simply an interaction of some provisions with others, and it was realized -

FERGUSON: Sure, that is a technical argument about what happened but who came up with the idea in the first place? Who pushed it forward? 

BURKE: That is what I'm saying, I don't think it had been deliberately put there in the amendment that was moved but it was worked out that the effect of the amendment would interact with another section of the Bill and therefore there was a pathway where they could potentially be criminal penalties. That is why Senator Gallagher went ahead with wanting to seek leave to be able to introduce an amendment to fix it. And for reasons I will never understand, Senator Cash, on behalf of Peter Dutton, blocked that amendment and insisted that if the bill was going to go through, the criminal penalties would be there. So, I will introduce separate legislation on Thursday to fix that. 

FERGUSON: Were there discussions about a possibility of having criminal penalties over the course of the last year since you have been considering this? 

BURKE: No, there were discussions about fines and then effectively the idea came up during discussions with the crossbench and with business, I might add, that another way of doing this would be to simply give the right to the worker rather than frame it as the obligation on the employer. And when you did that, you ended up with the same outcome in terms of the change in balance but without some of the fear and alarm that would otherwise be there. 

FERGUSON: So, you weren't involved in discussions about putting criminal penalties into the legislation at any time? 

BURKE: I have got no recollection of that being referred to at any time. 

FERGUSON: Why the sudden rush to push it through parliament last week? 

BURKE: It was not a rush to put it through last week, I wanted to put it through last year. 

FERGUSON: Yes, but I think you cut off the possibility for the Opposition and independents putting up amendments, didn't you? 

BURKE: There were amendments moved around the Senate. No one from the House of Reps will ever be a good guide as to Senate procedure. But there were amendments moved in different places. That is what happens in the Senate. 

FERGUSON: But there were amendments put up by the Opposition and potentially by, amendments that both the Opposition and independents wanted to put up in the House, not the Senate. 

BURKE: In the House, you’re saying? Sorry. In the House, we had a situation where we are dealing now, the Opposition have a new strategy which is effectively to try to talk out the debate and to keep the debate going for as long as possible. They spent about 45 minutes this morning debating whether or not we would debate this today. Effectively, what they are doing is they are trying to fill up the parliamentary time so that we have less time talking about the tax cuts. 

FERGUSON: Let's talk about the underpinning for this again. The Fair Work Commission already has a mechanism for dealing with disputes. Why do we need legislation on top of that? 

BURKE: In terms of the right to disconnect? 

FERGUSON: Yes. 

BURKE: It is to make clear that workers have a right to not constantly work for the time that they are not paid. At one level, it is interesting that this is even controversial. At its core, all we are saying is that you are meant to be paid when you are working in Australia. That is effectively what this whole debate is about and when there is give and take, having this right will make no difference at all. But in a situation where it is all one way, then the impact here will be pretty clear, which is, workers who, when the give and take is not there, will be able to say, “Hang on, I don't have to constantly be working for the hours I am not paid”. Some workers already have this right, I should add. It is in the police force, they have it, one of the newspapers was deeply critical of it. 

FERGUSON: I think that is the point, isn't it? No one is making the argument against reasonableness. The question is the need for further legislation, exactly as you have just referred to, the Victoria Police amended its EBA to include a right to disconnect, many businesses already have it, so the question is, isn't the system already working well enough? 

BURKE: If you are an award employee, you have no protection at the moment. The examples that I was about to give ... 

FERGUSON: Except the Fair Work Commission. 

BURKE: You can't assert a right to disconnect unless you have a right to disconnect. It was put into law today, the provision will start in six months' time, that to have it in agreements, most workers are not covered by agreements. But the agreements are actually the test, the proof point, if you like, of why this can work. And as I was about to say before, one of the newspapers railed against this really hard, they have actually got it for their own workforce, in their own enterprise agreement. This can work, it needs to be extended, it has been proven in agreements and taking it into awards is the next step. 

FERGUSON: Let me just ask you this, people are obviously redefining what the working day is, particularly since COVID. A young parent can ask to shift their day from 7am in the morning to 3 o'clock, for example, to enable something like school pick-up. Can they then say that an email at 5 o'clock is unreasonable when the rest of the office is working beyond 5 o'clock? How does it work? 

BURKE: When you have got a principle of reasonableness, when something is happening now and then, when it is right on the edge of hours, I can't imagine the Commission being neither here nor there about that being a serious dispute. When stop orders and other issues come into place, is effectively if a worker is being penalised by their employer, because the employer is saying “You have to be on all the time”. Then you would be able to take action now. 

It is very much driven by, as long as people are working and it is happening cooperatively and there is no problem but if a worker is not constantly checking, not constantly working unpaid, then they can't be punished for it. And as I say, I am surprised at one level that this has even become controversial. I think part of the reason it has become such a talking topic for people and there has been so much chatter about it is because there is more than a little bit of it going on. It is not everywhere but there's more than a little bit of it going on. 

FERGUSON: Tony Burke, thank you very much indeed for joining us this evening. Thank you. 

BURKE: Thank you.