TRANSCRIPT: TV INTERVIEW - SKY NEWS - FEBRUARY 15, 2021

E&OE TRANSCRIPT
TELEVISION INTERVIEW
SKY NEWS MORNING BRIEFING
THURSDAY, 25 FEBRUARY 2021

SUBJECT: Rights for gig workers.

LAURA JAYES, HOST: So how do you bring in a minimum wage for contractors working on commission?

TONY BURKE, SHADOW MINISTER FOR INDUSTRIAL RELATIONS: What you do is you allow the industrial commission, the Fair Work Commission, for the first time to be able to deal with people who are “employee-like”. And that let’s the Commission set minimum standards for people, it lets them look at the algorithm, look at how a company’s operating, and to make sure there’s minimum standards for people. Effectively at the moment what you have is a cliff, where the big question is can you define them as employees? And if you can’t define them under the technical definition of employees they go from lots of rights to absolutely none. This allows the Commission to deal with the circumstances where these days, with the gig economy, there’s a whole of people in a grey area. And it would allow the Commission say we’re not going to have a set of workers, a growing section of the Australian workforce, where they simply have no rights at all.

JAYES: But this is really complicated Tony Burke because these riders often work across multiple platforms, they're working irregular hours, and they're often inconsistent. So what happens in that case? And how can the Fair Work Commission get around that?

BURKE: Very easily. They can look at the circumstances and work out what minimum standards are appropriate. It may be they'd be able to do it in terms of minimum rates for whatever period of time and ride goes for. There's a series of different ways they can do it. The reason we've gone down this path, though, is two-fold. The first is whenever you try to lock down legislatively – this has been tried around the world – when you try to just lock down legislatively, okay, this is how we'll deal with the gig economy. What happens is the platforms just reorganise to evade the law. What this does is give the Fair Work Commission the exact same level of flexibility that the platforms have. And that makes sure we don't end up with a circumstance where every time you think you've given people some rights they just organise around it. There's been examples of some gig platforms, at one stage giving uniforms and then deciding no we can't give them uniforms because then they might be considered employees, deliberately reorganising to avoid rights. If the end point is we've got a section of the community working with 21st century technology and receiving 19th century working conditions. That can't be acceptable.

JAYES: Okay but if it works on supply and demand, and at the moment riders are paid a share of how many deliveries they make - are you talking about completely turning on that head where they're not in fact contractors working on commission but they become employees, because that's not how these platforms work at the moment.

BURKE: I just said we're not doing that. I said, to try to widen the definition, specifically of “employee” creates a whole lot of complexities. It's been tried around the world, and all the platforms have done is reorganise around it. What we're saying is we acknowledge that there is a grey area. There are people who are “employee-like”. People who don't have the strength or power that they are genuinely running their own business as independent contractors. I've run my own business, lots of people have run their own business – I'm yet to meet anyone who did it so they could earn less than the minimum wage. And this is to acknowledge that there's people in a grey area, and give the commission the power to work out for the different platforms, what rights are appropriate.

JAYES: But the power to do what? The power to make sure that they are paid a minimum wage for every hour that they work? What if they're only working two hours a day? What if they're only doing one delivery per hour? I mean that really changes the fundamental way these rideshare systems work doesn’t it?

BURKE: You've just provided the exact reason why the right way to deal with this is to give it to the Commission. If they want to do something that goes in five minute blocks, or one minute blocks even. However they think is best to organise, looking at the different platforms, they can do it. Because let's remember, this isn't just migrant workers and it isn't just rideshare. A lot of people don't know, there's a huge section of the National Disability Insurance Scheme now where people are working on gig platforms, where rates are getting lower and lower and undercutting, even though the taxpayer is still paying the full amount. It's not making it through to the worker who's doing the job. And each platform works slightly differently. The only way we're going to fix something which I think most people would agree is unacceptable, to have these rates of pay that would be otherwise unlawful in Australia, the only way to fix it is to have a system as flexible as the platforms themselves. And that's what giving this power to the Commission would do.

JAYES: Okay give me an example. There's an individual that works five hours on the Uber app, Deliveroo, or whatever you want to call it. They do, you know, five deliveries in the first hour, and then you know, it's uneven. How would the Fair Work Commission? Look at that? Would they look at giving them the minimum wage over that five hours? And who would pay for it?

BURKE: Well, I'll deal with both of those questions. The first thing is, the Commission would work out given the platform, what was the fair outcome? That's what they do. That's what they do with every award -

JAYES: Based on what? Based on hours worked of deliveries undertaken?

BURKE: Based on the extent to which they thought it was employee-like. If they look at something and they think look, that is actually someone running a small business, that’s nothing to deal with an employee situation, then they would not regulate it -

JAYES: Would the Fair Work Commission look at it on a weekly basis, look at it on a monthly basis? Because some of these rideshare workers work three days one week, they don't work the next week at all. And then they might work, you know, five days the next. So on what timeframe?

BURKE: Well look in terms of casual employee, for example, where we agree it's an employee relationship, you already deal with that flexibility on an hourly rate. With gig platforms where people's work period goes for less than an hour, I'm not going to prejudge the Commission.

JAYES: There’s a lot of grey area here though Tony Burke. I don’t think anyone understands how this is going to work. The Fair Work Commission and you included.

BURKE: Can I just make clear. Let's start with this principle Laura. If people are working for $10 an hour in Australia, that's not acceptable. If people are working in a situation where the only way to keep your job and not get bounced off by the algorithm is to run red lights, ride between the lines with the risk that someone opens their door and you end up lying down beside the traffic. Because that's what the riders who were there today told us happens at their workplace. That's not acceptable. And so you then say, well, do we think we're talking about a small business situation? An employee situation? Or something in between? The answer is we're dealing with something in between. And if you set down as you've proposed, in the questions that you've reasonably put to me, if you set down here is the rigid system where as to how it would work, I'll tell you what will happen the next day: the platforms will reorganise to make sure they don't have to meet any of those obligations. By giving the flexibility to the Commission, you allow them to do for these workers what they do for every other worker in Australia. And that's to say, there will be a safety net. People can go above the safety net. But I'll tell you what, if you have a section of the Australian workforce with no safety net, they land with a thud. And that's what's happening.

JAYES: Well, how much do they need to be paid in order to ensure their safety?

BURKE: And this is where I didn't deal with the second half of what you asked before, which is who would pay for it? Some of the costs would be borne by the international companies and some of the costs would be born borne by consumers. You can make anything cheaper by paying wages that are less than the minimum wage. And I think if people, I'm very confident that the Australian people will not be worried about paying an extra dollar here or there to make sure –

JAYES: This is a huge undertaking, and to be frank if Australians wanted to pay more for food delivery they might actually take up the option to tip their drivers more. There's no evidence of that happening.

BURKE: Wow. Sorry, sorry, Laura. We are not the United States. I never want to see us being a nation - and this is what we're starting to see – where we’re a nation -

JAYES: Do you think consumers are happy to more for their food delivery?

BURKE: Yes. To make sure that people aren’t being paid less than the minimum wage. Of course. If you have a restaurant that's paying less than the minimum wage, and paying unlawful rates, then yeah, it'll be cheaper for people to go to. But we accept that would be unlawful. And we put in minimum standards. I've got to say what sort of country have we become if we accept that there is an underclass being paid less than what we have already decided is the lowest rate that you should legally be allowed to pay in this country?

JAYES: Perhaps I'm underestimating the Australian people. But what we've discussed here this morning, Tony Burke, I think is a very complex area of the gig economy. How do you expect the Fair Work Commission to navigate this grey area? Are you confident that they even understand the gig economy?

BURKE: At the moment they don't have the power to deal with it but they have the power to regulate every other workplace in Australia. So in terms of them being able to deal with the diversity of workplaces, of course, by definition that's what they do. At the moment, they're prohibited from going here. And the reason they're prohibited is at the moment in Australia, you go from being an employee having a series of rights, to if you don't meet the full common law definition of an employee you go to having none at all. And what the Commission has to do at the moment, they have to decide, are you an employee and if you if you don't fit the full definition, go away. They can't help you at all. This would allow them to deal with the grey area which they haven't been able to. And I'll tell you, we can talk about it intellectually that this is a grey area. It's not a grey area if you're trying to pay the bills at home, and you're being paid less than $10 an hour.

JAYES: What is the minimum wage by the way?

BURKE: The minimum wage is $19.84 an hour. Obviously, there's loadings and if you're in a particular industry, you'll have an award that will be above that. But that's the minimum wage.

JAYES: Okay. Last time we spoke you couldn't put a dollar figure on what this plan might actually cost. We know that the government put it at about $20 billion. You said that's not right. Are you any closer to telling us how much it will cost? How much it will cost consumers and the companies?

BURKE: Look the bulk of what the government was going through was they were adding entitlements that didn't exist. So what they were doing, in fact the entirety of what they were doing, was something that was quite different to what we were even consulting about. So the $20 billion cost they refer to is a zero. That's what it is. And zero for the very simple reason. What Christian Porter presumed – and it took me a while to get through the bizarre nature of what he’d put forward – but what he put forward was a policy that wasn't about making existing entitlements portable for some workers, it was about paying new entitlements that don't currently exist. What we're talking about is consulting on is there are some industries, particularly where people work back-to-back contracts – and I went through this in some detail with Tom Connell last week I think it was – where there are some people on back-to-back contracts were effectively their entitlements are there but three months later, with a different job, they’re not being having a way of being able to carry them forward. They're the sorts of places where it's appropriate. Once again, it won't work for every industry but they're the areas. In terms of the $20 billion figure Christian Porter refers to, the answer that is zero because he's talking about inventing new entitlements. That's not our policy.

JAYES: We'll get to that another time. I think we know from this conversation today, Tony Burke, there's still a lot of detail in all of that. We appreciate your time.

BURKE: I’ll be back.

ENDS