Event: **DOORSTOP** Bran Black, Parliament House Canberra
Speakers: Bran Black, Chief Executive, Business Council of Australia
Topics: Industrial relations; right to disconnect amendment; casual work definition

E&OE

Bran Black, Chief Executive, Business Council of Australia: Well, thanks everybody for coming out. These policies that are being considered by the Senate today, they’re anti-business, they’re anti-worker and they come at a time that Australia can least afford it. We've been saying right throughout that these policies will add cost, they add uncertainty and they add risk to business and it's just not what Australia and Australians need right now. Questions?

Journalist: Are you concerned that the new right to disconnect is actually going to lead to some employees using it vexatiously or abusing that new right and calling up the Fair Work Commission?

Bran: Absolutely, and this goes to the process issues that I think we've seen with the way in which this particular reform has been considered. Let's not forget that the first time that anybody saw this in practice was last Thursday with the Senate’s Report. There had been discussions, of course, around the potential that this might arise. But there was no formal proposal, no opportunity for consultation, no consideration of this particular issue by business groups. And the consequence of that, as we've seen, is that it's been fundamentally cut up because it isn't practical. Now, let me say this business is not opposed to the idea that people should be able to switch off, I know I like to switch off, I'm sure everybody here likes to be able to switch off as well. But you need to be able to make sure that you get these policies right in terms of how they're implemented and the type of consultation that is required to do that.

Journalist: Do you think bosses will be scratching their head and going well what's reasonable contact outside of hours? What's workable within these parameters? Am I going to get in trouble for the emailing or phoning my employee?

Bran: They'll absolutely be thinking about that, and they’ll be thinking about that because, as I say, there hasn't been the right type of process for consultation. And it's through these types of consultation processes that you get these issues ironed out. What we would have liked to have seen, of course, is a proper consultation, followed by legislation, followed by an opportunity to consider that legislation. And, indeed, at that point that's when you get the engagement of the employer groups and they get to provide their input, we haven't seen that. And the consequence is that employers will be spending money with their lawyers, that money of course gets passed on and that's not what we need right now.

Journalist: Employees of this building are quite famously called upon at all hours, would you expect the politicians who voted for this measure to commit to be good bosses themselves and not be contacting their staff at all hours of the day?

Bran: That fundamentally goes back to that point of consultation doesn’t it. You want to make sure that you accounted for all of these things, because right now we just haven't. Right now, we're dealing with a situation where legislation has been introduced, and it's been rushed through, because people haven't had a chance to properly consider what its consequences are in action. We've seen over the course of the last week that case studies have arisen. What happens if you're in Western Australia and you're sending an email after 2pm in the afternoon? What happens if you're in Brisbane in summer, sending an email to one of your Sydney colleagues after four o'clock, those are the types of instances that need to be considered. And you've got to make sure that through these processes, through proper process, you get to a point where people understand what their rights and what their obligations are with new legislation. I think fundamentally here though there is a broader principle at play and that is that with the imposition of more and more regulation, what you see is more and more cost that has to be incurred by employers, again, as I say, that comes at a time when Australians and Australia can least afford it. But ultimately, it just adds to the cost of doing business and we need to remember that what we need to drive is investment. These types of policies don't deliver that.

Journalist: Bran on the gig worker elements of this Bill were you confident the Fair Work Commission can set minimum standards for gig work without threatening the concept of gig work? The flexibility that it is sort of built upon?

Bran: We are concerned about how this operates in practice. So when you look at the changes that we understand are likely to be considered by the Senate today, it is clear that there are some measures that provide some additional clarity, certainly in terms of the types of workers who are eligible to be subjected to a minimum standards order. But what we would look for in all circumstances, and what we have been clear on right from the outset with our advocacy is that what we want to see is clarity on the types of orders that can be made, absolute clarity. Because you've got to remember that this translates into the type of costs that ultimately get imposed, take UberEATS as an example, on how much you spend every time you use that particular platform. So for us, what we're saying is provide that clarity upfront, and it goes back to that process point to take the time to do the consultation, to get right what is needed in order to lock in the type of safety and security that you're looking for, for workers in the gig economy. But at the same time not imposing additional unnecessary cost.

Journalist: And that gets passed on to the consumer, the price of a pizza goes up if this this goes wrong.

Bran: That is precisely our concern.

Journalist: What do you think the impacts are of the change with the casual conversion?

Bran: So, what I would say is that there have been some changes, it would appear, that have been made as a consequence of the discussions led by crossbench senators, and indeed, also pushed by crossbench members of the lower house. What those changes do is make the casual conversion test less bad, or the casual conversion process less bad than what it was, but it doesn't make it good. And I'll give you an example. I was talking to one of my member CEO’s yesterday, and these are people that are trying to do the right things by their employees, and offer them the chance to convert to permanent roles when they wish to. What this person said to me was that the existing casual conversion test takes an hour for each particular instance that they go through in order to consider an employee's eligibility to transfer from casual to permanent, takes about an hour internally. Now, according to the Government's reports, at the time that these Bills were introduced, they said that that test should take 10 minutes. Now let's remember that the existing test is a single line test that effectively says what the contract says goes, what that's been replaced with is a 15-part test. And in the Government's own report they said that that would add only another five minutes to the process that the business is going to have to go through in order to be able to consider whether somebody should convert from casual to permanent. So, what we say is patently the clear results, the proper results of these types of new processes need to be considered and worked through. We haven't seen that.

Journalist: What will business groups be doing with the six month pause that the crossbench have brought you in terms of the introduction of that test?

Bran: Well, I think it's clear that business groups and businesses are absolutely going to be just trying their hardest to get on top of these new changes as early as possible. It's absolutely clear that with changes of this magnitude you need to move early. And let's consider that magnitude between the last Bill introduced in December and the Bill that’s introduced now. You've covered labour hire, you've covered casual work, you've covered the gig economy, you've covered intractable bargaining, you've covered the full range of the Australian industrial relations system. So what we really need to see, of course, is businesses are trying to understand the full implications of these laws and that is going to be quite challenging. You know, the number one point that is made to me when I talk to CEO’s is that Australia is a less competitive place to do business than it used to be. They say, particularly those CEO’s who are here operating in Australia but headquartered overseas, that when they go overseas to their international border and they try and secure capital for investment in Australia that it's increasingly hard for them to do that. They say that their overseas boards are looking at other investment opportunities in other jurisdictions where they see less red tape, they see incentives, they see more productive industrial relations settings, and they think to themselves well I’ll invest there rather than here. We know that we're facing into a future where we're going to have trouble securing the revenue that we need to pay for services. Articles every day about, for example, the cost of the NDIS. The only way we're going to get over that challenge is by securing much greater investment into the country, driving jobs, driving increased tax revenue. And it's these types of changes, they drive down our competitiveness, and they make it less possible for us to enjoy the future that we enjoy now.

Journalist: The right to disconnect has been sold as a commonsense measure. But do you think it's going to basically require a broad overhaul of Australian workplace culture to get those settings right?

Bran: I think it's going to be extremely interesting to see how this plays out. Let me be clear where we have arrived, in terms of having a right to disconnect, rather than a positive prohibition on employer contact of employees represents a better balance than what was originally proposed by the Greens which saw both the prohibition and the right to disconnect incorporated into the proposed Bill. But that's still going to be enormously difficult to work through in practice and particularly in light of what we've seen with the Australian workplace and the changes that have occurred post COVID. Of course, post COVID we've seen more and more people want to avail themselves of flexibility, more and more people want to spend time working around their lives and more and more employers have been open to the types of flexibility that that encourages. So for us, there is going to be a great unknown here and what we're concerned about is that these types of changes make the system ultimately far less flexible.

Journalist: Do you think we will have to wait to see the first cases in front of the Fair Work Commission on these right to disconnect rules before we actually know what the limits are on these restrictions?

Bran: I think I think that's absolutely right. You are going to have to wait until the Fair Work Commission considers these types of cases before you have a sense of precisely what this legislation looks like and I'm not just talking here about the right to disconnect. I'm talking about the changes that we're seeing right across the broad spectrum for the Australian industrial relations landscape.