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As minister for Employment and Workplace Relations, Tony Burke has made it his mission this year to fix the inequity of the gig economy. By Kieran Pender.

Tony Burke on his plans to reform the gig economy

A politician with grey hair speaks in parliament.
Minister for Employment and Workplace Relations, and the Arts Tony Burke.
Credit: AAP Image / Mick Tsikas

Tony Burke could be forgiven a hint of weariness. Recent months have been filled with hectic legislative activity for the leader of the house and Employment and Workplace Relations and Arts minister, and despite federal parliament concluding for the winter break, there is no respite on the horizon. One fight against employer groups over the Same Job, Same Pay bill is ongoing, and another battle over gig economy reform is gearing up.

Reflecting on a busy past year and an even busier six months ahead in his Workplace Relations portfolio, however, Burke exudes only energy and enthusiasm. He’ll need both for the expansive reform agenda ahead.

Burke, 53, is one of Anthony Albanese’s most experienced ministers, having entered federal parliament at the 2004 election and immediately joined the shadow ministry. He has held ministerial or shadow ministerial portfolios ever since across a range of areas, but never, until June last year, the sometimes poisoned chalice of industrial relations.

While Burke is new to the Workplace Relations portfolio, he says his perspective on it was well established from his six years as an organiser at the Shop, Distributive and Allied Employees Association (SDA), the union representing retail, fast food and warehousing workers. “The thing I’m happy about, with that experience, is that I was never in the office going to the [Fair Work] Commission, or in the structures. My lens is entirely the workplace,” he tells The Saturday Paper. “So the challenges of what a roster change means to somebody’s life, how seamlessly a culture can deliver underpayments. When I see the policy and the legislation, I also see the faces of the people I used to help.”

Having last year steered an initial tranche of industrial relations reform through parliament, in the Secure Jobs, Better Pay bill, Burke is now preoccupied with a second phase of reform – Same Job, Same Pay. The bill aims to stop employers using labour hire to drive down workforce costs, addressing the situation where two workers in the same workplace – one directly employed, the other engaged through a labour hire firm – are paid differently for the same work.

Employer groups have hit out at the proposal, launching an ad campaign with slogans including: “Same Job, Same Pay – takes your reward for hard work away”. The ads have featured prominently in The Australian Financial Review – a copy of which is open on Burke’s desk as we speak.

“I’ve found those ads pretty funny,” he says. “They’re running a campaign against a policy that is not the government’s. So I guess that means they’ll win at that campaign.”

Burke may be dismissive of the attack ads but as employment minister he has to navigate a complex world of self-interest from employer groups representing large and small employers and different sectors, plus the unions and other industrial relations bodies. In a speech to the National Press Club earlier this year, Burke discussed getting all of these groups around the same table. The challenge of his portfolio is that every Australian has a stake, directly or indirectly, in workplace conditions.

“There’s a private world and a public world,” he says. “In the public world, different stakeholders need to prove to their members that they’re fighting – and you’ll get the public arguments. What matters to me is that you can still have the private conversations where you can say, ‘Okay, I get that you would rather we weren’t going to implement this policy at all. Given that the government has a position, let’s have a conversation about avoiding perverse or unintended consequences.’ And overwhelmingly, people have been willing to sit down at the table and have that conversation.”

The government has called the Same Job, Same Pay proposal “limited and targeted”, while employer groups canvassed repeatedly in both The Australian and The Australian Financial Review have complained this “couldn’t be further from the truth”. The current consultation process has also been described as “more a case of the government telling the groups what it planned to do”.

Burke brushes these concerns away. “It’s been professional … The fact that that’s not always reflected in public statements is neither here nor there to me.”

The third phase of workplace reform under the Albanese government will be landmark changes to regulation of the gig economy. For two centuries, Australian employment law – and before it, English law – has operated on a binary distinction between employees and independent contractors. Australia’s system of labour protections attaches predominantly to employees, who are guaranteed minimum workplace standards – pay, leave and so on – and cannot be unfairly dismissed. Independent contractors have no such protections.

The binary made sense at a time when contractors were exclusively entrepreneurs running their own businesses, but the model has been challenged by the rise of the gig economy and the use of contractor arrangements in employment-like situations. Of the 13.7 million Australians in the workforce, more than 8 per cent – a million-plus workers – are now independent contractors. At least 250,000 of those work in the gig economy, with almost no workplace rights.

Burke wants to change that. In April, his department issued a consultation paper – “ ‘Employee-like’ forms of work and stronger protections for independent contractors” – proposing to recognise and regulate a new, third category of workers. It would be a paradigm shift. Burke describes the reform as adding a “layer of making sure you get it right”.

“You want that with every policy but, when you’re talking about a new jurisdiction, you need to ensure that there’s no overreach.”

The rise of gig-style work is a common challenge for many economies. “Around the world, the way some jurisdictions have tried to deal with the gig economy is to try to turn people into employees,” says Burke. “Even if you thought that was a good idea, the platforms can reorganise their algorithm faster than any parliament of the world can legislate. And so whenever you said, ‘Here’s a new set of rules that will define [who is an employee]’, you’ve actually given them the guidebook as to how to evade it.

“The platforms have broken [industrial relations] systems around the world – that’s what they do,” Burke continues. “So what we’re trying is something quite different.”

Instead of fitting gig workers into the current binary, the new third category would be underpinned by minimum standards set by the Fair Work Commission. “Having run my own businesses, and coming from a small business family, I know what a small business is,” the minister says. “Someone delivering pizza on the back of a bicycle for less than the minimum wage is not running a small business. They might not be employees, but they deserve some minimum standards.”

In his press club address, Burke described the binary model as “falling off a cliff” when it came to workplace rights – if you’re not an employee, you’ve got almost nothing. The new approach, he says, is “turning the cliff into a ramp”.

First, the government is proposing to clarify the definition of employee. “If the answer is yes [to being an employee], all the associated rights follow,” he explains. The next stage down the ramp is the new category. “If you’re working on a digital platform, are you employee-like?” says Burke. “And there’ll be standards appropriate for the form of engagement.” Gig economy workers might not get rostering rights or overtime, for example, but there could be minimum pay rates.

While the gig economy reform will be focused on digital platforms, Burke says he also wants reform for independent contractors in the wider workforce. “There are people who are not on a digital platform, who are genuinely independent contractors – for those people we want to establish a jurisdiction that allows them to contest unfair contract terms,” he says.

Altogether, the proposed reforms are, in Burke’s view, an evolution rather than a revolution. The digital platform changes mean “everybody who uses the technology will still be able to. I use it”.

But it will not be smooth sailing. Already, Uber has unleashed an advertising campaign selling the flexibility of its independent contractor model. The messaging is subtle, for now, but the fight could turn nasty given the implications for Uber-style business models. Burke is unafraid. “I think in this job, you don’t go looking for fights,” he says. “But if they come your way, then as long as your principles are right, you stand your ground.”

The minister invokes history to justify the cause. This nation has, by global standards, long had a relatively labour-friendly industrial relations regime, dating back to the landmark Harvester case in 1907 that insisted upon minimum pay rates sufficient for a living wage.

“Australia made a decision a long time ago that we don’t want to be a country where you have to rely on tips to survive,” Burke says. “Our principle for more than 100 years has been that if you’re working here, the minimum rates of pay will be enough for you to be able to get by. That’s what working in Australia is meant to be. We have a new form of [workplace] engagement where that’s not necessarily the case. I’m going to fix it this year.”

Ensuring these reforms are fit for purpose in a rapidly changing work landscape, let alone pushing them through parliament unscathed, will be no small task for the next six months. Burke admits his work does not allow for much spare time. But he is wary of being consumed by it. While we have not canvassed his Arts portfolio contributions, including the launch of the new national cultural policy at the start of this year, Burke volunteers some thoughts on the role of creativity in politics – with a hat tip to a Labor stalwart.

“Over the years I’ve caught up with Paul Keating as often as I can,” Burke says. “And he’s always talked about how his best policy work was done to [Gustav] Mahler. You can get trapped in this job in a world of nonfiction. People can be working hard in that world, but creativity drives creativity. If you want to have creative policy thoughts, you’ve got to surround yourself with creativity as well.”

Burke likes a bit of Mahler but admits he isn’t turning to the Romantic composer so much for his inspiration. He makes time each day for poetry and plays keyboard and guitar – a few electric guitars are clustered in the corner of his ministerial office. “A lot of what I listen to is much closer to what you’ll hear in a pub,” Burke says. Which seems fitting for someone pitching for a better deal in the gig economy.

This article was first published in the print edition of The Saturday Paper on July 1, 2023 as "A tough gig".

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