Omesh Jethwani, Government Projects & Programs Manager and Cameron Spence, Workplace Relations Manager, in conversation with The Hon. Damien Tudehope, Minister for Finance and Minister for Employee Relations.

1. Since you were sworn in as Minister
for Finance and Employment Relations
in December 2021, how has your
journey been so far?
It has been an interesting journey because we
live in a time of heightened industrial activity
but I welcome the challenges and opportunities
that brings. There are a lot of issues facing both
employer and employee groups, and getting the
policy settings right is an important component
of the job. Those outcomes flow across the
full suite of Government service delivery so its
important that we get it right.
What are you most proud of so far in
your time serving NSW?
It is difficult to identify one thing but I think as
a Government, in which I previously held the
role of Small Business Minister, the response to
Covid-19 stands out.
I think we can be proud of the manner in
which we assisted small businesses through
Covid-19 to make sure that we got as many
businesses through that period when they were
under enormous pressure, with no customers,
no income and no ability to repay debt. We
put in place a whole lot of policy settings for
small business to be assisted to get through
the pandemic. We were probably the leading
State in our economic response to Covid-19.
That meant getting the balance right between
economic response and health response.
In doing so we were able to help a lot of
businesses get through that period.
What does work-life balance look like
for you?
It varies from Minister to Minister. I would
have found it hard to balance political life with
looking after an ever-growing family given the
level of demands placed on politicians. I have
come into politics reasonably late in my life.
My children have all left home and got careers
of their own. In many respects, I think this is
an ideal time to draw on the experience that
I have had as a lawyer and as a father. Also,
having a large family helps me to understand
the pressures that those bring and contribute to
politics with that in mind.
I have a profound admiration for people
who can balance family and politics as it is
challenging. I think the Premier is a beacon in
terms of the manner in which he does balance
family life. I have to say that the demands of
political life make that balance difficult, but I am
probably doing it at a stage of my life where it is
best able to be done for me.
In a classroom of six-year-olds in a
show and tell, how would you describe
your role?
I would say that my role is to improve the lives
of all the kids in this class and their parents.
Industrial relations disputes seem
to be on the rise in the State (Trains,
Nurses) — why is this?
It is complex and very different in different
segments of the workforce. There has
been a long period of industrial harmony
accompanied by low inflation and consistent
real wage increases for public servants. Now
we are living in a different economic climate
which presents challenges for employees and
employers. We are also living in a different
political environment. The head of Unions NSW,
Mark Morey, came out and quite openly said
this would be a year of strike and industrial
activity. He foreshadowed that the unions were
in a pre-election environment. They were going
to influence that environment through industrial
activity. So, we are facing increased industrial
activity against a different economic climate
background. In addition, a political climate is
playing into that scenario, and I think those
who have an input into the industrial climate
recognise both factors.
As the State returns to work post-
COVID-19, what employment issues
do you think will be front and centre in
2022?
The pre-eminent issue which is confronting
everyone in their lives at the moment is the
increase in cost-of-living pressures, regardless
of whether you are an employer or employee.
Employers are very cognisant of all those things
which impact how they run their business,
whether that is increased payroll, whether
it is increased rent or difficulties with supply
chains. The cost of running a business is clearly
increasing across a whole range of things, such
as turning on the lights, paying rent, etc. The
cost of doing business is clearly escalating.
From the employee side, the mums and dads
who take home a weekly wage — because of
inflationary pressure and mortgage pressures —
are effectively seeing a reduction in real wages.
Getting that tension right, between making
sure the employers can keep employing people
and that employees have sufficient means to
feed their families and deliver a reasonable
lifestyle. This is where the tension exists. We
must ensure a reasonable balance between
employee demands and employer demands.
As the Minister for Employment
Relations, what do you believe is
the single most important issue in
workplace relations in NSW today?
The biggest issue is the cost of living and
getting it right to ensure that we get a fair
and reasonable outcome for both employers
and their employees. In New South Wales,
the public sector is the employee group for
which we are most responsible. The Federal
Government and the Fair Work Commission
have responsibility for the private sector. We
have nearly 450,000 public sector employees in
New South Wales, and our responsibility for the
public sector is first to recognise the pressures
on those public sector employees and make
sure that we can afford the pay increases and
the work conditions which they are seeking.
For example, we have had the health services
union come to us with a variety of demands
in relation to their employees. Everyone in
our community recognises health workers’
contribution during the pandemic. We have
put in place what I think is a very reasonable
package to recognise the contribution of
the health service sector, provides a fair and
reasonable wage increases and looks to areas
where we can modernise and improve awards.
Getting those policy settings right has been
important. The wages policy, when first
introduced in 2011, was one of the single
most important factors in ensuring that we
got wages under control. This was needed to
provide the capacity to deliver a desperately
needed infrastructure pipeline for the people
of the State. Getting our wages policy correct
allowed us to deliver outcomes for the whole
of the people of the State; whether it is rail
infrastructure, road infrastructure, hospitals, or
schools, they are the things that people expect
us to deliver, but we also have got to make
sure that we would look after our public sector
employees at the same time.
NSW has a notable city/country divide
— do you see different employment
relations issues facing people in
regional areas as opposed to people in
Sydney?
There are obviously differences in lifestyles
in regional and metropolitan areas. However,
whether you are in the country or the city, the
same pressures exist in respect of the cost
of living. Turning on the lights every day, as I
said before, is a costly enterprise. Paying your
electricity, gas, and grocery bills are the same
whether you live in the country or the city. If you
have a family in the country, you still must pay
your child’s care costs and mortgage. There
are tree change opportunities for people who
want to relocate to regional areas because
they can potentially get better cost of living
arrangements. However, from an industrial
perspective, when the Government sets
employee relations policies, it is the same things
that they take into account.
In two recent decisions, the High
Court has clearly stated that contract
is king when determining the status
of a worker as an employee versus a
contractor. In making these decisions,
the High Court has reversed a long
line of decisions that had previously
enabled courts to infer a relationship
based on post-contractual behaviour.
What are your views on this
development?
I think something is to be said for the High
Court taking the position. I am a lawyer by
profession, and I have to say there should
be an acceptance of the fact that when two
parties who are acting in good faith reach an
agreement between each other, the court
should not interfere with that contract unless
they can demonstrate that there are other
factors which show that there is inequity in the
bargaining positions of the parties and
they are truly not independent
contractors.
But where the parties’
bargaining positions
are equal and enter
into a contract, the
black letter lawyer
in me says the
High Court should
honour the terms
of the contracts
people enter into.
I am well aware
of cases involving
independent contractors
where courts have sought
to form a view about whether
someone is an independent
contractor, employee, or the like and have
ignored the contract’s provisions. I think these
cases go to circumstances where the court is
saying if there is a contract between the parties,
if you are a true independent contractor, for
example, an owner-driver or any of a whole
range of activities that people enter, then you
should honour the contract, and I support that
decision.
Unions are obviously a major player in
State Industrial Relations. How would
you describe your relationship with
them?
Whenever you are the Industrial Relations
Minister in a conservative government, you
are often construed as an enemy of the union.
Quite frankly, I think that is unfounded. I respect
and believe that there is an essential place for
unions to represent employees’ interests.
Where potentially I think there is animosity
between governments and unions is whether
there is a perception by Government that
a union oversteps their bargaining rights
in relation to properly representing their
employees. Now everyone will have a view with
regard to that, and sometimes you lose public
sympathy, and sometimes you gain it. However,
because unions are vital in many respects, they
should not abuse their position in terms of the
representation of employees for the purposes
of obtaining political outcomes, because I think
it diminishes the function that unions should
rightly play in representing their employees.
Given that the vast majority of
Industrial Relations is now a Federal
matter under the Fair Work Act 2009,
what do you see as the primary role of
the NSW IRC going forward?
As I have said before, the primary role is that we
have a relationship with and retain jurisdiction
over 450,000 public sector employees. The
Industrial Relations Commission has an
enormous role to play in managing wages
disputes and implementing fair and reasonable
employment conditions in industrial
instruments. It has a considerable
role to play in resolving
industrial disputes and
unfair dismissal claims
in respect of public
sector and local
government sector
employees.
Another important
aspect that is
often overlooked
is the work that the
Industrial Relations
Commission does with
regard to the transport
sector in NSW, mainly
owner-driver, couriers and taxis.
It provides a safety net for these
sectors where some of the operators may not
have equal bargaining power. Recent consent
amendments to some of these Contract
Determinations, it would appear the system
is supported and working well. Chapter 6
of the Industrial Relations Act was a unique
mechanism to the NSW industrial relations
landscape that other jurisdictions are now liking
and copying.
What key issues do you want the NSW
Industrial Relations Commission to
address?
I do not dictate to the NSW Industrial Relations
Commission. It is an independent industrial
tribunal. I think that it has an important role to
play in applications in relation to employment
agreements for endorsing those employment
agreements to make sure that they comply with
THE
FUTURE OF
WORKPLACE
RELATIONS
IN NSW
Omesh Jethwani, Government
Projects & Programs Manager
and Cameron Spence,Workplace
Relations Manager, in conversation
with The Hon. Damien Tudehope,
Minister for Finance and Minister
for Employee Relations.
There has been a long
period of industrial harmony
accompanied by low inflation
and consistent real wage
increases for public servants.
Now we are living in a different
economic climate which presents
challenges for employees and
employers. We are also living
in a different political
environment.
NSW MASTER BUILDER NEWS NSW MASTER BUILDER NEWS
22 MBA NSW | Issue Three | July-September 2022 Issue Three | July-September 2022 | MBA NSW 23

2. the Government wages policy and to make sure
that the terms of those agreements are fair and
reasonable and are agreed to properly by the
parties.
The NSW Industrial Relations Commission
has a significant role to play. Some of the
issues it has been involved with — certainly
during COVID-19 — are critical issues such as
COVID-19 vaccination mandates and related
issues regarding the timing of returning to
work. Some employees have chosen not to
be vaccinated and have brought proceedings
to the Industrial Relations Commission.
These are complex issues which need to be
thrashed out. The Government has a hands-
off approach in relation to that. We might have
a policy, but we are hands-off. The Industrial
Relations Commission generally tries to reach
an outcome in respect of those employees and
their employer, often a department, to ensure
that they are treated properly and fairly.
Given the ‘rough and tumble’ history of
industrial relations in the construction
space, do you see a role for increased
law enforcement in industrial relations
in NSW?
There are two things I shall say with respect to
that.
Firstly, I think there is a demand that we enforce
orders that the NSW Industrial Relations
Commission makes. I have reasonably given
notice that we shall introduce legislation to
increase penalties for parties who do not
comply with orders made by the NSW Industrial
Relations Commission. Currently, we have the
lowest penalty regime of any state in Australia
in respect of the penalties imposed for non-
compliance.
If the penalties for non-compliance are seen as
merely a feather duster approach to industrial
relations policy, then they’re easy to flout. I think
we should be sending a signal that the rule of
law needs to be complied with, and the rule of
law should apply in relation to industrial activity
as it does with respect to every other aspect of
our life. We cannot have an industrial relations
system in which parties feel free to flout as they
wish.
The second thing we must be cognisant of is
that we have had a long period of industrial
peace, but people often forget or do not have
the corporate memory of when we did not have
industrial peace. Certainly, the building sector
has had a number of Royal Commissions in
relation to activity in the building sector. We
should not lose sight of the fact that there
was, in many respects, a serious degree of
lawlessness attributed to those unions involved
in the building sector. I have that memory,
whether it was the Giles Royal Commission,
Cole Royal Commission, or the Hayden Royal
Commission, where it exposed a significant
amount of what can only be described as
lawless behaviour by building unions which
need to be addressed.
I have serious concerns about the dismantling
of the Australian Building and Construction
Commission (ABCC), and I think that we
have projects in New South Wales which are
essential for the economy and productivity of
the State. We cannot allow a circumstance to
arise where we have industrial lawlessness,
which creates a blowout in the cost of those
projects. If the ABCC is to be dismantled,
we need to be able to look at other ways to
make sure that we have an industrial relations
framework that appropriately serves employees
and the broader community.
NSW MASTER BUILDER NEWS NSW MASTER BUILDER NEWS
24 MBA NSW | Issue Three | July-September 2022 Issue Three | July-September 2022 | MBA NSW 25
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