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Doorstop Media Conference – Parliament House

Transcript

E&OE

Subjects: IR reform re coronavirus; Parliamentary sitting arrangements

ATTORNEY-GENERAL:

Thanks everyone for being here.

I'm just going to provide a brief update on two matters. The first - and they’re related. The first is the basics of the parliamentary arrangements for next week and the second is just an update for you all on the drafting to facilitate the JobSeeker payment system.

So next week obviously we're sitting on Wednesday. The essential agreement is for 47 pairs, which will mean that there will be 30 Members of the Government present and 21 Members of the Opposition. I've not yet had the opportunity to speak individually with each of the cross benchers but the expectation is that most of the cross benchers in the House of Representatives will be attending. There'll be a Question Time on at 2pm as usual. It's also the case that we'll be dealing with matters that are essential to the passage of legislation to facilitate the JobKeeper system. Finally we're working through a range of logistics – it’s not a simple process to get people in and out of a variety of places around Australia for Parliament. We'll be utilising the special purpose aircrafts from the RAAF to enable that to happen for some Members because of the lack of commercial flights - we'll obviously be trying to do that in a way that it is as safe as possible in this building - as safe as possible for the return of Members to their local communities - abiding by the variety of restrictions and exemptions that each of the states have in place with respect to passage in and out and across their borders. So that is a basic summary of what will occur next Wednesday.

With respect to the drafting for the JobKeeper payment system; I think it's fair to say it's probably one of the most important drafting exercises post World War II. It will facilitate $130 billion worth of economy-saving and job-saving expenditure. There is a lot of progress - it's occurring under enormous time pressure. There are two halves to the legislative process; one being drafted through Treasury and one being drafted in my department and my office dealing with the industrial relations matters. The drafting’s progressed to a point where we'll likely be able to marry up those two halves; fit them together and ensure that they operate seamlessly to facilitate the system of payment - that will occur tomorrow and then final stress testing around that legislation so that we should have drafts up and running finally, on Monday.

With respect to the IR side, if I can explain the essential difficulty and challenge that we're dealing with in this way; I think there's agreement amongst all people who have knowledge and experience in industrial relations and employment relations in Australia that for the system to work you have to make changes to the way in which the employment relations and industrial relations system in Australia presently operates. Now those changes would be time-bound, they would only last for as long as the payment system lasted. But without those changes, even if it were the case that a business would face a situation where it would otherwise have to let an employee go - so that they had no job and no wage and no way to provide for their family - without changes to the IR system and the employment relations system – that’s what would happen rather than the employee getting the $1500 in substitution of a normal wage.

So we must change the system. Now I've been working very, very cooperatively with Sally McManus and the ACTU and with the assistance of Greg Combet on the Prime Minister's Commission. There's been enormous progress on a number of matters in the industrial relations system. We will not be waiting or hoping that this change can be effected over the coming weeks or months by changing 121 Awards and thousands of individual enterprise agreements. This change will be happening next Wednesday. No matter how late we have to sit, the change will be happening next Wednesday; 6 million Australian jobs depend on it. Next Wednesday we are pushing a $130 billion lifeboat out into the roughest economic seas Australia has ever seen. And people will need to decide whether or not they're going to help us push that boat out - but it is going out on Wednesday. And we are not going to be arguing about timing and process and speculative possibilities in the weeks and months to come. This and the changes necessary to make JobKeeper happen are happening next Wednesday.

QUESTION:

So what comfort can you give the ACTU?  You said that you've been working very cooperatively with them - that it won't be rorted; that it is time-bound and that people won't be asked to take their leave now from workplaces where they don't need to do that.

ATTORNEY-GENERAL:

I'll be sharing drafts with the ACTU.  I'll be working those drafts through line by line in a cooperative, open, frank and honest way with the ACTU. I want them to have comfort that what we are doing is time-bound, that it has the requisite safeguards and mechanisms in it to ensure that there's not rorting of the system. But ultimately the laws need to change to allow people to receive $1500 dollars where they otherwise would have received nothing because the business was unviable.  If you don’t change the laws, people don't get the money and they can't pay their mortgage – it’s that simple - so we'll be doing this in a cooperative way but we won't be waiting weeks or months for thousands of individual agreements to get changed.

QUESTION:

What about the issue of the 1.1 million casual workers who may have been working for a long time but just not for a single employer and therefore don't qualify?  Will you have flexibility to allow those people to access JobKeeper?

ATTORNEY-GENERAL:

So that's a definitional piece of drafting and obviously you have to have some definition to include people - we've tried to come up with a definition which is as inclusive as possible. We're working around the edges of that definition at the moment; we've been listening to what Sally McManus and the ACTU have said.  Of course for many people because of the fact that the definition in principle that we will use, has no limit on the number of hours that people have worked, that someone might have been attached to a business for over 12 months but only worked a day a week and they will receive a very significant increase.

Now we acknowledge that there are many people who are regularly employed casually but who may move from employer to employer.  There is always going to have to be some definition; we're working on that; we are listening. So when you will see the final draft you'll see that we're trying to be as inclusive and reasonable as possible. Of course there are other safety nets in the system through the JobSeeker payments - the doubling in effect of NewStart that we've allowed for to provide a safety net for someone who won't be in the employment side of this.  But we are listening. We're doing this under extreme time pressure and we are trying to make sure that the result is as inclusive and fair and reasonable and job-saving as it possibly can be.

QUESTION:

Sally McManus did offer a definition today. I think she came up with a ‘reasonable test’ that if you could have reasonably expected that you would have been working were it not for the coronavirus crisis, then you should get the JobKeeper the payment. Are you willing to acknowledge that sort of test or is that the path you’re going down?

ATTORNEY-GENERAL:

I'll be looking at her suggestion over the course of today.  The test that we've adopted is essentially a test that exists already in the Fair Work Act. One of the initial instinctive difficulties I've had with that formulation of words is that it's so rubbery I can't quite tell you what it would mean in practice which is always going to be a difficulty.  But look we are listening right. We're doing it in short time, we're trying to make the definition reasonable and inclusive and there will be, as Sally McManus said in this today, in her language ‘swings round-a-bouts’ some people will find themselves being paid significantly more than their usual wage because they're part time or casual. Some people will be in a business that just wouldn't be viable unless it's $1500 being paid which might be less than their usual wage. Some people will find that their usual wage is subsidised with $1500 and they’re still paid their usual wage; much will depend on the nature and status of the viability of the business. So all of that is a matter of quite complicated drafting that we're working through.

QUESTION:

On the industrial relations…the Prime Minister talks about the snap back. Is that going to be, for the assurance of the union movement and for others, is the snap back going to be set in a sunset clause with a hard date of six months?  Can that be varied by you, by regulation or does that require further approval by Parliament if this amendment of the Fair Work Act is going to run for more than six months?

ATTORNEY-GENERAL

So the present intention for the drafting of both the JobKeeper payment and the IR changes that are necessary to make it work are that it's all time bound for six months. And that is in effect sunset which would happen automatically.

QUESTION:

And you can tweak the Fair Work Act and extend the rules yourself?

ATTORNEY-GENERAL:

You'd have to come back to Parliament and extend the six month period but, you know, that's down the track but the Prime Minister's completely and utterly accurate that this has a sunset date – it just ends – the payment has an end and the changes that facilitate the payment would have an end as well.

QUESTION:

Can you clarify the position of council workers?  So employees in a council childcare centre, in a council library, are they covered by JobKeeper or not?

ATTORNEY-GENERAL:

The arrangement as I understand it is that the state governments will find a way to soften the impact on council workers but councils themselves and their employees are not the subject of JobKeeper.

QUESTION:

Would you countenance any kind of penalties for organisations that might abuse this because of course some, some will see an opportunity?

ATTORNEY-GENERAL:

Yeah I mean individual businesses will need to make decisions about how they preserve the connection with their employees and sometimes that'll be paying them their usual wage and subsidising the wage.  In some very distressed businesses when the choice is between going under or paying people just the $1500 – they’ll have to make that decision. The legislation works on principles that that has to be done with common sense; with consultation; with representation.  That it is a system where, if a direction given by an employer is unreasonable, that can be subject to contest in the Fair Work Commission, so they're the general principles and yes if you did something that was contrary to the laws that were passing there would be a penalty.

QUESTION:

On law enforcement, we’re seeing with the shutdowns different rules in different places; we're seeing golf banned I think in Victoria and allowed in other states. Now, under national Cabinet we're meant to be seeing a national approach. But we're not seeing it with some of the enforcement and some of the rules state by state. Is that a failing of National Cabinet? Is there anything that can be done about that to bring things into line?

ATTORNEY-GENERAL:

Look I don't actually think that is a failing of National Cabinet.  The first point I'd make is that there's been as much consistency as is reasonably been possible and agreeable but different states are in different points of the epidemiology of the disease and have made some different decisions around individual restrictions. Now there will always be differences in the way in which enforcement is undertaken - having had a law enforcement background I often found it interesting that there'd be differences in enforcement as between individual police undertaking enforcement of the very same law in the very same jurisdiction. But I think that in each of the states there is obviously a significant job of work to be done by Ministers, Police Ministers and Attorneys-General to make sure that where the law is in existence and it is a change, that it is well known and consistently and reasonably enforced with a high degree of common sense because we're obviously in uncharted territory.  But I don't think that that in any way reflects poorly on the National Cabinet system - to the extent that we have much higher consistency than we ever would have expected possible - that is a product of the National Cabinet.

QUESTION:

You say that the lifeboat is going out on Wednesday, no matter what, but even in that scenario the cash doesn't flow to businesses until May 1.  Of the more than half a million businesses that’ve now registered interest to take part in the JobKeeper program does the Government have any idea how many of those might have already started paying their employees that $1500 a fortnight knowing they'll get it reimbursed or is the system just relying on good faith and hoping that they're doing that?

ATTORNEY-GENERAL:

Well when the payments are facilitated after the legislation and through the ATO, there is a self-assessment by each business who applies as to whether or not they meet the definition of distress and a high level of honesty is going to be expected in that application.  How businesses are struggling through this at the moment is actually very difficult to tell because the circumstances are so fluid. But the point I would make about the necessity of the legislation is there are 11,000 enterprise agreements out there and thousands of those would need to be individually changed to facilitate the JobKeeper system which is a massive lifeboat for 6 million Australians who might find themselves without the pay necessary to pay a mortgage - and that facilitation can be achieved simply fairly and efficiently and we hope by cooperation next Wednesday - so this thing can get off the ground and get moving and the lifeboat gets pushed out to the people who need it.

QUESTION:

One of the concerns that has been raised is that employers could force employees to run down there leave entitlements - full time and part time workers, while they're still receiving that JobKeeper payment. Will there be a provision in the legislation to prevent leave being run down while the employer is receiving the JobKeeper payment?

ATTORNEY-GENERAL:

We're considering that at the moment, but I just make this point; that there were three changes to three of the most important modern Awards by hospitality, restaurants and clerks.  And by cooperation and agreement, the unions and the employer groups changed precisely those Awards in the way that you've just described because they considered, by cooperation and by agreement, that that was one part of an important flexibility that could make the difference between businesses surviving or going under and people having a job, or having no job.  So it's being considered and that'll be considered in a cooperative way with the ACTU through a process.  But precisely the change that you just raised has been agreed for 2 million workers through the award system already by cooperation between employee and employer groups.

QUESTION:

….for the period that they received JobKeeper payments that they wouldn't ….

ATTORNEY-GENERAL:

I understand what you're saying and I'm not giving you an answer. But what I am saying is that the change that you have just indicated is a change that unions and employers have already agreed to in the context of restaurant, hospitality and clerks.

QUESTION:

Who do you think shares the jurisdictional responsibility for the Ruby Princess – is it NSW Health, is it the Federal Government through Border Force or does the cruise company itself…..(unclear)

ATTORNEY-GENERAL:

It’s obviously been a busy couple of days in government and I haven't gone through a Ph. D analysis of the jurisdictional conflict of laws with respect to the Ruby Princess, maybe one day I'll have the sweet joy of being able to do that. But I must say I found Mike Outram’s explanation of the timing of events and the bearing of responsibility to be utterly persuasive. So anyone who wants an answer as to responsibility for what occurred I think would do no better than listening to Mike Outram’s explanation.

QUESTION:

Are you supporting of the New South Wales police investigation?

ATTORNEY-GENERAL:

Well I think that makes sense.

QUESTION

On telecommunication companies providing data to governments to track people to limit the spread this is something the Australian Government is considering or is this a state or territory…

ATTORNEY-GENERAL:

Well that idea I think ultimately is one that, the telecommunications power in the commonwealth constitution would have to be considered at a commonwealth level.  There are a variety of systems that are operating internationally - they're all being looked at. There has of course been an app developed and released about tracking clusters, so yeah that's one of many pieces of work that's going on inside government.

QUESTION:

There is concern and confusion in the international education sector are you able to clarify the Government's position on whether foreign students should go home now?  Is that what the PM was saying last week?

ATTORNEY-GENERAL:

Look, I'm not being the Education Minister I might just leave that to him, but I understand the position on that is generally that the students have a special (unclear). I'll leave it to the Education Minister to talk about.

QUESTION:

Just back on IR and just to be clear, are you just saying that basically it's impossible to change all the EA’s, there are going to be some unintended consequences as Sally McManus says, and the reality is there may be some employers who abuse the system that’s just a  reality we have to accept in extraordinary circumstances?

ATTORNEY-GENERAL:

Whether you changed 121 Awards or thousands of the total of 11,000 enterprise agreements - or whether you change the Act, no system is beyond the ability to be subject to poor behaviour from anyone involved in the system. But what I'm saying is that the legislative changes that we will make will be time bound, they’ll be reasonable, balanced and have in-built mechanisms to minimise and mitigate against any misuse of this temporary system that we'll be putting in place.

QUESTION:

…(unclear) 200 coming from China and another 100 or coming from Hong Kong. What is your level of concern there and where do you think these faulty devices, as Minister Dutton has called them, are coming from?

ATTORNEY-GENERAL:

Yeah, look that's being looked at the moment.  I received a very short brief from Home Affairs on that. I think that initially at this stage before we can give perfect answers as to where they're coming from, how they're being imported, I can say two things; we're well aware of it; we're trying to stop it as best we can at the borders by checking - not in a routine way but in a targeted way.  But for people who have any lack of certainty about the source of a test that they might have or are buying them online or through the post, don’t do that – use tests that your Doctor is asking you to use or prescribing for you to use. Don't take testing into your own hands at this point in time because we know that importation of tests involves also the importation of faulty and sometimes even dangerous tests.

QUESTION:

Does the JobKeeper legislation have provisions for the non-profit sector in terms of the fact they often rely on lump grants or unexpected donations so they won't necessarily be able to demonstrate that 30 percent loss in income?

ATTORNEY-GENERAL:

So look we're working through how you ensure that it includes all of the businesses who are genuinely in distress that we want to.  The starting definition for the stress is, as you know, 30 per cent of turnover for a business under $1 billion and 50 per cent above. We're working on how we can make that test fit as best as possible a variety of circumstances including, not for profits and NGO’s.

QUESTION:

So are you, is the Government now considering the need to freeze the superannuation guarantee?  Obviously a lot of employers are finding it difficult and then you also have this added problem of super funds possibly getting a run on the super fund so are you reconsidering this at the moment?

ATTORNEY-GENERAL:

That is not in my portfolio but look in my portfolio, where matters are being raised either by unions or by ACCI or other employer groups, I'm listening to them. I'm not discounting anything out of hand. That is not in my portfolio so I can't say whether or not that suggestion has been formally put by relevant stakeholders to Treasury. So I'll leave that to the Treasurer.  But I think at least in my portfolio is a degree of listening and cooperation and consideration that has never existed before. I hope that continues as I'm sure it will.  I hope that that cooperation continues but it's very much a two way dialogue at the moment. Thanks for being here today and I'll get back to that dialogue. Thanks very much.

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