E&OE

Tony Jones, host 3AW Mornings: On the line to drill down into this and tell us what it does mean is Jennifer Westacott, the CEO of the Business Council of Australia. Good morning.

Jennifer Westacott, chief executive Business Council of Australia: Good morning Tony.

Tony: Well, first things first, what is a BOOT test?

Jennifer: The BOOT test is called the Better Off Overall Test and a couple of things to say about this. First of all, it's staying and there are two changes to it. The first is a set of permanent changes that are proposed, that get rid of some of the things that have made it unworkable. Let me give you an example. At the moment, the commission has to account for hypothetical workers. So people who aren't even working in a business. It takes a long time to get agreements approved. So sometimes like a year to get an agreement approved. And that means people wait a year for their pay rises and it doesn't give the overall effect and it doesn't give a primacy if you will, to the parties, the unions and the employer sitting down together. And what it means is that people then come along and then blow up an enterprise agreement at the last minute who weren't even at the table in the beginning. So that's a permanent set of changes, very important. And then there's this temporary change where the Better Off Overall Test could be bypassed in extreme circumstances. So let me talk about the safeguards there Tony. First of all, the parties have to agree. So if a union is representing you, they have to agree. Secondly, the Fair Work Commission has to agree. Thirdly, it has to be in the public interest, and it has to be for exceptional circumstances that are related to COVID. So I'm not expecting that to be used very often. But I think the other crucial point to make is that this whole package, casuals, more flexibility for part-time workers, improvements to the enterprise agreements. You think they're all pretty practical, common sense things that fix up all the problems that have been in the system for ages that have made it harder to employ people basically and harder to give them high wages.

Tony: So who is the winner here? Business or the worker?

Jennifer: I think both are. So let me just give a couple of examples. So casuals, the example you just gave, casuals will now have a clear path to be made permanent. We will have a definition. So if you've got a forward commitment of work hours and regular work, you're not a casual. And after 12 months, the employer by law is obliged to give you the option to convert to permanent work. And if that's disputed by the employer, then you can go to the Fair Work Commission and have that conciliated and where the parties agree, have it arbitrated. So there's a pathway for people working casually to become permanent.

Tony: Sorry if I can just jump in there. So what if the casual is quite keen to become permanent and he or she has been working in that situation for 10 months and thinking, 'okay, I'm almost there and I'll finally get a full-time job, I'll get my holiday leave, sick leave, et cetera.' But then, six weeks shy of that 12-month anniversary, he or she is given the boot?

Jennifer: They would have the normal remedies under the Fair Work Act. But at the moment, that can happen now. And this is a big improvement on what we've got now. Where there's no pathway really, in a kind of permanent way for people to become permanent workers. And there's no proper definition and there's been a huge amount of confusion there. So that's a good thing. That's a really good thing. Where at the moment, there's a lot of inflexibility for part-time workers. And then the really crucial thing that's in these bills is that some of the flexibilities that have existed for people on JobKeeper, for these really distressed industries that are really under the hammer as part of COVID, we'll be able to extend those provisions and be able to have that flexibility retained, even if they're not on JobKeeper. And that's going to keep more people in work Tony. Because these flexibilities, that have been agreed by the unions and the employers, they've kept tens of thousands of people in their jobs. And we're not out of the woods yet on COVID, that's what's really important. We've got a long way to go on this. We've got to keep some of that flexibility in the system.

Tony: But how many casuals in percentage terms, you've obviously done your research here, in percentage terms, how many casuals would want to become full-time workers?

Jennifer: Well, that depends on them. I think people...

Tony: Because they'd probably be earning more as casuals as wouldn't, they? They don't have the security…

Jennifer: They've got lead loading and things like that. And in some cases that suits people, and this is really about what works for people. Isn't it? I mean, if I want to work casually, if I want to work part-time, it's about putting that flexibility. Not just for businesses, but for employees, some people prefer to work casually.

Tony: And what about the employer? What if the employer is keen for that casual to become a full-time worker? Because economically it might be better for the employer, but the casual says, ‘no, I don't want to.’ What happens in that situation?

Jennifer: Well then it would be up to the employer to say, 'do I want to keep that person working casual? Do I want create a permanent job?’ And give that person the option to take that. And if they don't, they would obviously have the option to get someone else to do that work.

Tony: So the employer can actually say, 'okay, I want you, your 12 months is up. I want you to become full-time.' If that casual worker says, 'no, I don't want to.' Then the employee can say, 'well, you’ve lost your job.'

Jennifer: Well that would be the case now. That people who say, 'I want that position to become permanent.' Then the employer could say, 'well, I want to change that arrangement.' But this is better than where we are now Tony. Where the casual does not have that automatic right to be made permanent. Where the employer, after 12 months, has to give them that choice. And that's really important. That's a big change. And the definition. At the moment we've been operating on no definition here and that's super important. So, what we've got to do now is stop the kind of 'us and them' debate between unions and business. Businesses overwhelmingly do not want to rip off their workers.

Tony: You're never going to stop that.

Jennifer: Well, I'd like to think we'd have a crack at it because I tell you who depends on it, the one million people haven't got a job at the moment. They depend on us all coming together to try and fix this system and make things better for people. And to make it easier for people to employ people and to allow small businesses to get back up on their feet again. That's what's at stake here. And I hope we can all come together and try and work constructively to make sure that if people want extra safeguards in these bills, let's put them in. Let's get the problem solved. Let's make sure that we keep working together and make sure that those million people who depend on us all, so that their jobs come back, that their come back.

Tony: Alright, Jennifer, as I said, it's a pretty complex issue. It's a somewhat emotive one too, especially when that 12-month period expires and you've got to sit down and work out just where you go from there. So look, good luck with it all.

Jennifer: Yes and at the moment no right, at the moment that doesn't exist. So this way the employer has to come through and say, 'hey, you're entitled to become permanent.' That's a big improvement.

Tony: Well, it's a big change that's for sure. Now, Jennifer, can I ask you a completely left field question?

Jennifer: Sure.

Tony: You might've, while you were waiting to come on, you might've heard me talking about this. Have you had your appendix out?

Jennifer: I did when I was about eight or nine and it was very traumatic. I remember that. Because in those days, surgeries were, I'm now giving away my age, surgery wasn't was it was. In those days of course, people whip them out at the sign of a stomach-ache. But I remember mine being a pretty traumatic experience actually in the old Katoomba Hospital where I had them out.

Tony: Oh, up in the Blue Mountains? Would you believe I had mine out at Nepean Hospital at Penrith?

Jennifer: Oh really? I don't think these days the surgeons are as quick to take them out. And of course, when I had mine out it was your local GP who was a surgeon, you didn't have to pay a super specialist to have your appendix cut out.

Tony: Your local GP was the surgeon? You are giving your age away.

Jennifer: I'm showing my age. Well, some of the GPs in those days were surgeons. My doctor, Dr. Kennedy was his name, he was a surgeon and a GP. He took my appendix out. But I do remember it's pretty traumatic and pretty unpleasant. I do remember that. But I think they're not as quick to chop them out these days.

Tony: No, that's right. Alright Jennifer, we went off in a different direction there.

Jennifer: That’s alright.

Tony: Terrific to talk to you.

Jennifer: Thank you. See you.