TRANSCRIPT: DOORSTOP INTERVIEW - SYDNEY - THURSDAY, 21 MAY 2020

E&OE TRANSCRIPT 
PRESS CONFERENCE
SYDNEY
THURSDAY, 21 MAY 2020

SUBJECT: Federal Court decision on job security.

TONY BURKE: Yesterday's decision in the Federal Court was a big win for job security. A big win for Australians who have been working permanent hours but have had a minority of employers treat them as though they were casuals. What the Federal Court determined yesterday is that employers cannot double dip. They cannot take the benefit of a permanent workforce and then treat them as though they have no job security. They can't take the benefit - and it is a benefit for the employer - to have a secure reliable workforce that will turn up for them on fixed rosters every day. But the return for that security that the employer gets, is the employees have a right to job security as well.
 
For some time in this country, we have been talking about wage theft, about where people are not given the wages they're legally entitled to. The case with respect to what's been decided with WorkPac, what's been decided for Mr Rossato, instead of dealing with wage theft, it deals with security theft. It deals with where people have had the job security they were legally entitled to taken from them.
 
I have got to say, I'm astonished by the government's reaction to this the whole way through. Where they are talking about extraordinary sums of money that they believe will now need to be paid as a result. That would only be the case if there has been widespread breaking of the law by Australian employers. I certainly hope that's not the case. But I have to say if employers much more broadly than WorkPac have been acting in breach of the law, if they have been refusing to give employees the security that they were legally entitled to, then the last thing the Parliament should be doing is acting as a protection racket to cover for people who have broken the law. If job security that people are entitled to has not been given to them, then the response from the Australian Parliament - and I have got to say from the Australian Government - should be to make sure that the law is upheld. A whole lot of people, particularly casuals, have found themselves with nowhere to go during COVID-19, have found themselves not entitled to a whole lot of what is offered to people in permanent work. Every Australian right now should be on the side of job security. And this decision says that when a business has not delivered on job security, then the law should step in. We shouldn't be changing the law to let businesses that have broken it off the hook.
 
JOURNALIST: The Australian Industry Group says this ruling is evidence of the fact that the law doesn't define what a casual worker is, and that has led to this interpretation by judges. The government is saying it is going to look at regulating or legislating to remedy that. What's wrong with that?
 
BURKE: I've got to say, the Australian Industry Group would do well to read the decision. The decision says if you have a firm advanced commitment, if you have regular reliable hours, if that's what's expected from the employee – then you are not talking about a casual, and the decision is really specific on that. We're talking about someone here who was - you know, for all the talk of casual loading - was being paid less than the permanent workers working beside him, because he was employed through a labour hire company. So, the argument that somehow they were paying more - no, they weren't. He was earning less than the workers beside him. But because the labour hire company simply wanted to define him as a casual, they say that should be enough. What the court said is "No". If you're on regular, reliable hours, if you've made a firm advanced commitment, then you are not a casual. And if you're not a casual, then you should get the benefits of job security, which means if you're sick, you get sick leave. During the year you accumulate annual leave. When you go to your bank and your bank says, "Are you a permanent or are you a casual?", you get to say, "I'm a permanent" because we all know how much more difficult it is for someone who is defined as a casual to ever be able to get a loan. The arguments from the Australian Industry Group have astonished me. It's the first time I can remember seeing a representative group of business argue that they think a large number of their members have been breaking the law. Now, if that's their argument, then they really want to come up with a better one. Because if the Australian Industry Group is telling us a very large number of employers have been in breach of the law, I think it is their job to say to their members, "You're meant to keep the law."
 
JOURNALIST: No their argument is, to paraphrase the double dipping comment, is that this will be the first time that employers will have to pay someone twice for the same amount of work being done. And that's the unprecedented change, the effect of this ruling, and the casual loading for casual workers isn't related to security, never has been, it's related to the offsetting of all of those entitlements they're now going to be able to claim. So it's not that they've acted illegally, they've acted under the system as they thought casual workers were defined. This now clarifies in law what that definition is and changes things and allows these payments to be made. Is it allowing or forcing employers to pay workers twice for the same bit of work?
 
BURKE: What the decision says is if you've got a permanent worker you need to treat them as a permanent worker. That's what the decision says. And WorkPac tried to get away without doing that. And in terms of their argument, in this particular instance, their argument that somehow they were paying more. Why is it that Mr. Rossato was working side-by-side with people who were permanents and were earning more per hour than him? That's the real case that we're dealing with here. So this goes to the behaviour of a whole lot - I wouldn't say every but a whole lot - of labour hire companies, where it's been about undercutting both. It's been about undercutting pay, and undercutting job security, and they've been trying to do both and they thought they might be able to get away with it. And what the Federal Court has said is "No". The starting point is if there's regular permanent hours you're not a casual. That's the starting point. And we look at job security first.
 
JOURNALIST: Two more things. I interviewed a truck driver in Rockhampton this morning, works for one of these companies, involved in the case. He has a twelve-month advance roster. He works 42 hours a week. And he's a casual. He's welcoming this. How many other workers do you think are in that casual definition of work?
 
BURKE: I've got to say I don't know how many people have had employers who've been breaking the law. But what we have in front of us now is a clear message to every employer. You can't just buy off job security. If you want the security of a permanent workforce then you have to treat them as permanent employees. You can't just pay your way out of that and get off the hook. People have a right to job security just as employers have a right to a loyal workforce. And you can't double dip and think that you'll get the loyal workforce and not be able to have to provide the job security on the other side. You know there are some benefits that come with a fully flexible workforce. I get that. And you have to pay for them. But if you want the benefits of a loyal permanent workforce on long-term rosters then you owe your workforce some security too.
 
JOURNALIST: This could be appealed all the way up to the High Court. The Attorney General has previously flagged depending on the outcome of this case the possibility of legislating or regulating to nullify the effect of this ruling. What's your message to Christian Porter and the government today?
 
BURKE: If Christian Porter wants to use the Parliament to provide a protection racket for employers who have broken the law then he can expect an argument. He can expect an absolute argument and very strong opposition from us. And if the government thinks after all the insecurity that people are living in Australia at the moment, that he wants to change the law to give people less job security - we're there for that fight.
 
Okay. Thank you very much.

ENDS