TRANSCRIPT: RADIO INTERVIEW - ABC RN - DEC 8, 2020

E&OE TRANSCRIPT
RADIO INTERVIEW
ABC RADIO NATIONAL BREAKFAST WITH FRAN KELLY
TUESDAY, 8 DECEMBER 2020

SUBJECTS: IR changes; unions.

FRAN KELLY, HOST: Tony Burke is Labor's industrial relations spokesperson. Tony Burke, welcome back to Breakfast.

TONY BURKE, SHADOW MINISTER FOR INDUSTRIAL RELATIONS: Good morning, Fran.

KELLY: The retail and hospitality sectors are probably the hardest hit by the pandemic. Do you think it'll help their recovery if employers are given this right to ask their part-time staff to do extra hours while only paying them ordinary rates of pay. So no penalties, no overtime rates, more hours of work?

BURKE: As you know, we haven't seen the legislation on this yet. And some of it depends on how it’s implemented, how it’s time limited, how the government goes ahead with it. You will find examples of something similar to this in some enterprise agreements. But of course, that's where it's been given as a concession in return for a pay rise. So when you do something like this unilaterally, you've got to work through what the impacts of that will be throughout the workforce. So effectively our test on all of these different proposals - which are coming through via media drops before we've actually seen the legislation – our test will be whether or not they deliver secure jobs with decent pay.

KELLY: Well that's what allegedly this is about, the changes that the government says are about getting people into work. And if this flexibility was introduced into awards, you know, it would presumably increase hours of work, which is what we know a lot of the 1.7 million part-timers in the workforce want because underemployment is a major issue. And also if employers could increase part-time hours, it might mean they wouldn't rely so much on casual workers.

BURKE: At the simplest level, depending on how they drafted it, it might deliver that. But it's also the case it could, depending on how it's drafted, end up with a situation where part-timers are only ever given the minimum number of part-time hours and effectively half their work becomes casualised by a different name. So that's where sometimes what at the first blush looks like a great win you really have to get into the detail on this. Because you don't want somebody for example who needs 20 hours a week to be able to pay their bills to find themselves now only working something less than that. And the rest of their hours not being secure.

KELLY: But if they're given 20 hours a week and they're offered more hours to work, you know, what would normally be penalty rate shifts, will Labor accept that?

BURKE: Well this is where I say we're just going to look at how it interacts with that really simple test. What does it mean for secure jobs with decent pay? Again, that's our judgment on everything.

KELLY: We understand the legislation will also extend the temporary exemptions that were brought in under the Fair Work Act, emergency measures brought in during the pandemic which allowed employers who were using JobKeeper to vary an employee's duties or location of work. Now the recession is over but many businesses are still distressed. The government wants to extend this. Is there a case to extend these exemptions for a further two years?

BURKE: I've got to say when they announced the extension I was very worried they we're going to continue to extend the principle that they introduced a couple of months ago about workers having their hours cut, because that meant a direct cut to take home pay. What they've now said is what they're looking at extending isn't the cut to hours but the flexibility around the workplace. So we'll conduct a quick consultation with different industries that are affected by this and different unions that are affected by this. But certainly, yesterday I spoke very harshly when I thought that they were going to extend the cut to take home pay, which we’ve opposed the whole way through. The fact that they are not doing that means that there may well be a way forward on this.

KELLY: Okay, what about the BOOT? We don't have the detail yet. But there will be changes to the Better Off Overall Test - known as the BOOT, which underpins enterprise bargaining agreements. The Financial Review’s reporting the BOOT could be bypassed altogether for two years. Would Labor ever support setting aside the Better Off Overall Test, even as a temporary measure?

BURKE: There was a really significant interaction yesterday in question time Fran, which I think gives the answer as to where we're headed and where the government's headed on this. Where Anthony Albanese asked Mr. Morrison whether or not he would guarantee that no worker would be worse off and the PM ran a mile from answering anything about that. Our principle is we don't want to see individual workers worse off. The government clearly is okay with that. And I think that means with respect to the Better Off Overall Test, there's a fair chance we're heading to a significant argument here. But I can't tell you that categorically again because what the government's done is they've decided to start the debate without even letting the print journalists who are writing the stories see the detail of the legislation that the whole story is meant to be based on.

KELLY: Okay, there's another element that the Attorney-General is talking up, and that's the new criminal offense targeting wages theft. Employers would face four years in prison and fines of more than a million dollars for individuals if they engage in a deliberate and systematic pattern of underpaying one or more of their employees. Now we've seen systematic underpayment, large number of cases, from universities to 7/11, Woolies, even the ABC. Would these penalties, which range up to five-and-a-half million dollars for organisations, be enough to stop this wage theft?

BURKE: We've been calling for the government to act on this for five years now. So the fact that something's happening here, as a first step, we're glad. What we have to look at is what it will do is it will overwrite existing state law in Victoria, Queensland in the ACT. Now, potentially, that means we could end up with a situation where, in some places like New South Wales it's introducing a new protection for workers and in other areas, depending on how it's drafted, it may well be lowering the protection for workers. So this is going to be a pretty fine judgment call. Can I say that my biggest concern with what they do with wage theft isn't the criminality part of it - it's whether or not they have simple measures for workers to be able to get their money back. One of the biggest challenges here is when people have been ripped off through wage theft, whether or not there is a simple, no-cost jurisdiction where they can go and make small claims and get their money back.

KELLY: Is there that now?

BURKE: Well, we don't have that at the moment. There's a convoluted system described in one of the articles today. But that part of it, I have to say is my highest priority. There may be some challenges with exactly how they've designed the criminal part of it, with how it interacts with the states, but vulnerable workers getting their money back quickly has to be the highest priority.

KELLY: Okay, so you've clearly got, you haven't seen the legislation, it'll come in tomorrow, and it'll go off to committees and won't be voted on until next year. But you've clearly got some concerns. All of these measures, including the changes to casual employment, which I’ll ask you about too, will be contained in one omnibus IR bill. It's the standard take-it-or-leave-it approach from the government. Will Labor support the bill?

BURKE: A bill that I haven't seen. So let's start with that.

KELLY: Yes but in the past with taxation, Labor’s acknowledged that it's likely to support it, even though it will press hard for changes.

BURKE: Yeah, I hear what you're saying there. And there's been some legislation where we've just said absolutely no to. I do have some hope as to how this will unfold. Yesterday, Christian Porter in his media conference, the Minister for Industrial Relations, said the government was still listening. And they were still not locked in to what they were putting forward. If we end up with a sensible dialogue here where some of the legitimate concerns that we've got get taken out, then effectively, the problem that you've described doesn't end up happening. But if the government went a different path to what they flagged yesterday, and if the government went to take-it-or-leave-it approach the way you've described, then we're not going to vote for people to be less secure at work. So we're just not going to do it. It's not only because they need security – the Australian economy right now needs people to have a sense of job security, so they will spend money. If you feel insecure you're not going to be spending money and the pathway out of this recovery, with immigration and tourism having stopped, is going to heavily rely on domestic demand.

KELLY: Okay, you were very critical and lining up with the ACTU in terms of the changes to casual employment, which we were discussing yesterday. The ACTU says the changes would actually take rights away from casual workers. Will Labor insist on those provisions being carved out the bill?

BURKE: Well certainly what the government described yesterday, it had two challenges. The first, it was an example effectively of looking down their nose at casuals, and the government having a situation where if an employer is behaving badly they effectively get away with it for the first 12 months. But the biggest problem is even if you accept what the government said yesterday – and I don't – but even if you accept that what they were offering was somehow a significant improvement for casuals, there was no remedy attached. Because if it goes wrong, you only get to arbitration by consent. So if you've got an employer behaving badly, you don't get to take it to arbitration unless the employer says “I know I've been behaving badly and I will now agree for you to force me to improve my behaviour”. And all that's left, if the employer says no, is for a vulnerable casual employee to say “Well, I will now take you to the Federal Court of Australia”. I mean, how often is that going to happen?

KELLY: Okay, just finally and briefly. In terms of the second bill, the withdrawal from amalgamation bill that will allow union demergers, it’s aimed at breaking up the CFMMEU. Shadow Cabinet considered this yesterday. Will Labor support the bill, which will ultimately diminish John Setka’s power base?
BURKE: Normally I wouldn't comment on what happened at Shadow Cabinet but in fairness it has been splashed across the front pages of some of the papers today. Those reports are accurate in terms of Shadow Cabinet last night. We haven't finished our processes. We still have a caucus meeting today. And so you know, I reserve any Labor position until we've completed our processes. Can I say though, what we've had to deal with has been draft legislation. And I suspect there will be some changes before the government introduces the final legislation, which I expect will happen sometime today. So the principle I can tell you, is at the moment there's only a three-year window where a division of an amalgamated union can vote that it wants to leave again. We’re open to there being some exceptional circumstances beyond that three-year period where members of a division might want to exercise that democratic right.

KELLY: Tony Burke, thanks for joining us.

BURKE: Thanks for having me Fran.