Monday, 1 December 2008
Fair Work Bill 2008
I rise to speak on the Fair Work Bill 2008. The coalition government put an extra two million Australians into employment. There are currently well over 10.6 million Australians in work—a record high. Over 7.6 million Australians are in full-time employment and three million are in part-time work. I am here to strongly represent the small businesses and workers in my electorate of Forrest. The Rudd Labor government will put 134,000 people out of work, according to their budget forecast. Now there are additional concerns that 200,000 people will be out of work by 2010. The best policy is one of job creation, not job losses and deficit.
My electorate in the south-west of Western Australia, through its commercial diversity, is a powerhouse in the state and national economies. The south-west needs a flexible workforce to drive productivity and growth. Many workers need and ask for flexibility. Many larger corporations have employment policies for very flexible workplaces, allowing their staff to work from home—for example, those returning to work after maternity leave—to job-share and, for some, to work two days per week. Such flexibility is a necessity.
… with uncertain economic times ahead, it is vital that this Bill does not adversely affect the ability of businesses to increase their productivity.
A key reason for the ability of small and medium businesses to create jobs and provide real wages growth is the flexibility previous reforms have provided, especially with the number of developments and amount of regional growth.
Aspects of this Fair Work Bill have significant ramifications, particularly for building and mining sites, such as a return to the days of blackmail and intimidation from unions and closing down of sites, as exposed by the Cole royal commission. Under this bill, unions will be given easier access to workplaces and the right to inspect the records of non-union employees. This is an outrageous abuse of personal rights. The privacy of employment records cannot be assured even under the Privacy Act. Surely both the employer and the non-union employee have a right to privacy.
It comes as no surprise that, where the bill deviates from election promises, it does so apparently to appease those to whom Labor owes its biggest election debt—the unions. Minister Gillard promised no compulsory arbitration. That is in the bill. The minister promised no pattern bargaining. That is in the bill. The government promised that rules for union rights of entry to workplaces would stay the same. But it is not the same in the bill. Unions will have access to non-union member records; have a privileged seat at the bargaining table; and be able to enter a vastly expanded number of workplaces, even workplaces where the employer and employees have previously agreed that they do not want or need union involvement. This legislation unlocks the doors of virtually all workplaces to unions. These are things that the Australian people did not know they were voting for, and in fact Australians were expressly and explicitly told the exact opposite—that these measures would not be a feature of the new system.
I also note that operational reasons will no longer be acceptable as reasons for dismissal. What about the recent gas explosion and crisis in Western Australia? South-west businesses were basically left with little or no gas to operate their businesses. As a result, work stopped. Employers tried very hard to hold onto their staff, not wanting to lose them, particularly in a time of labour and skills shortages. There were businesses that closed down and there were some that had no option but to let good staff go due to circumstances beyond their control. What will happen in similar future circumstances when a small business cannot sustain paying employees if there is no work and no income for the business?
Christopher Russell from the Adelaide Advertiser also reported that small business wants an industrial relations system which is simple, straightforward, cooperative and recognises the rights of employers. The Australian Chamber of Commerce and Industry chief executive, Peter Anderson, states:
The new rights and compliance obligations will, over time, involve additional cost to employers, including non-unionised workplaces and smaller businesses.
Peak industry associations and representative bodies believe that they will be actively engaged in the debate on this bill as it passes through the House, the Senate and its committees, and that Independent members will need to strongly represent and act on industry concerns and reserve the right to move amendments to improve the operation of the legislation. The coalition, however, will be vigilant in relation to its impact on the real economy, in particular on jobs. I ask: how, in practical terms for small business, will union accountability and transparency be monitored and enforced? Giving unions greater power increases the chances of industrial disruption, shifting the focus of the business entity from productivity and job creation to managing disruptive union processes.
I am here to strongly represent the nearly 14,000 small businesses and workers in my electorate. The government’s changes to workplace relations come at a very challenging time for the Australian economy, when jobs and productivity are critical. In this environment, the government needs to encourage enterprise—encourage small, medium and large businesses to have a go and to have the confidence to invest and take risks, contributing to our macro economy by creating jobs and taking on new employees as well as training them.
Where is the incentive for a small business proprietor buying a new business and wanting to bring in their own personnel to take the business forward? Under this bill, the employment decision has been taken away from them because they must maintain the previous owners’ employees, removing the fundamental rights of small business owners to make their own commercial decisions. The nearly 14,000 small businesses in my electorate employ many thousands of workers, some of the four million employed by small business in Australia, with employers and employees working as a team; with employees valued and respected as a critical part of the business productivity, growth and success and often paid well above award rates for their loyalty and hard work.
A real test of the potential of this legislation is the fact that these same businesses do not want to be named in this speech, and I do not want to name them for fear of union targeting. I will quote from one of the companies in my electorate, a major employer who has been briefed by the local chamber of commerce and industry that outlined the key provisions of this bill. The company said: ‘In particular, under the key changes in the bill, employers will be forced into collective bargaining. An employee may apply to the new umpire, Fair Work Australia, for an order requiring the employer to bargain. There is little likelihood of a non-union agreement as the employer must notify each employee of their representational rights. In the absence of any response from the employee, a union which has representational rights will be the bargaining representative of the employee. Unions will be able to put a far more extensive set of issues, including union related issues, on the bargaining table, and this has the potential to extend the right to strike over issues not related to direct employment conditions.’ The company believes that this proposed legislation is, in its words, ‘repugnant’ not only to free enterprise but also to personal liberty.
As for the provision that allows unions the right to inspect records of employees who are not union members, the company commented: ‘Certainly, everyone has a right to join any legal organisation they choose. But it is ethically wrong to have a person’s confidential employment information forcibly revealed to an organisation of which they are not a member.’ Its existing individual contracts with its staff serve everyone very well. Staff have even asked if they will be able to keep their individual agreements. Its workers do not want those changes.
The company will not be alone in urging for the removal of the onerous provisions in the bill before it finds its conversations with employees shadowed by some uninvited union functionary. Its comments end by pointing out that ‘the last thing our economy needs is an extra layer of meddlers’. Those were its words.
This bill will do nothing for small business confidence, which is already at an all-time low under the Rudd-Swan Labor government. Growth indicators including sales, profits, employment and investment all fell during the last quarter, an issue that has to be managed by Australia’s 2.4 million small businesses. Strikes and industrial disputes dominated the landscape in the 19th and 20th centuries. There was an urgent need to make the 100-year-old industrial relations laws relevant to current productivity needs. The Cole royal commission exposed the widespread disregard of obligations concerning the unions’ power to enter work premises and inspect employment records. Increased union activity on building sites will go back to the days of manipulation, harassment and control.
In these current global economic times, Australia cannot afford to return to the days of, for example, Kevin Reynolds getting away with his overpowering tactics, which again was exposed by the Cole royal commission. As one worker said:
Any time we tried to carry out work, they—
would stand in our way, hinder us, heckle us, made it very uncomfortable for the workers when abuse gets out of control. They were basically preventing contractors from carrying out their contractual obligations.
Australia has evolved since that time. Australia has moved on and there should be no possibility of a return to a situation where intimidation and violence could once again dominate our building and construction landscape. Where are the safeguards? Can we expect more delays because of union involvement in every aspect of our commercial activity?
I will give another example of a business in my electorate. They filed for a labour agreement with the Department of Immigration and Citizenship because they wanted to invest approximately $2 million to expand the business and needed more staff to help them expand. They did all the right things. The operation is not a unionised site, but they consulted the unions from the outset to ensure they did everything right. The union gave its approval and the application was filed with the immigration department. It took seven long months and many follow-up calls and letters to establish where the application was and why it was taking so long. The delay nearly prevented the business from meeting their expanded contractual obligations under their tender. The delay was with the Rudd Labor government, which gave a blanket instruction that the unions needed to be involved and provide input to the business operations before any approval was given. So this is what lies ahead.
A recent OECD report said it is important for the ongoing reform of Australia’s workplace system to preserve flexibility in the job market. Western Australia is a progressive ‘can-do’ state, one that is specifically reliant on a flexible workforce to maintain growth and development. The Western Australian Chamber of Commerce and Industry has noted very serious concerns in relation to this bill that the proposed changes will disadvantage many small, medium and large businesses. Marcia Kuhne, the work relations policy officer, notes on the chamber’s website under the headline ‘Union power to grow under new federal industrial relations changes’:
WA’s economy has benefited from a flexible industrial relations system, giving employers and employees the choice to collectively bargain or negotiate individual agreements.
WA business and industry, which are a key driver of the State’s and the Nation’s economic growth, must be helped, not handicapped, to grow and create more jobs. Our world class export industries must also be supported to compete internationally.
The chamber is extremely concerned that unions will be handed greater influence over agreement making and workplace issues and that the likelihood of disruptive and costly industrial action will increase with the range of workplace issues open to negotiation extended.
Unions, which represent 16 per cent of the Western Australian workforce, will also be invited to the negotiating table even if only one worker is a member. They will also be given greater access to work sites and the employment records of workers. The Western Australian Chamber of Commerce understands the situation very explicitly. In its words:
The need for a modern and flexible industrial relations system has never been greater as the global community looks to business and industry to drive economic growth, create more jobs and help insulate the local economy from the current global economic uncertainty.
The Australian Industry Group’s chief executive, Heather Ridout, stated on 2 May 2007:
There are serious questions about the viability of the ALP’s Fair Work Australia proposal.
… … …
While the current level of industrial action is very low it was only a few years ago that construction and manufacturing unions were wreaking havoc on industry with pattern bargaining campaigns and industry-wide industrial action. The AIRC stepped in and used its powers to the fullest extent to protect the national interest and to stop unnecessary losses of income by employers and employees. If industrial action breaks out under a new workplace relations system, a strong tribunal is needed. The AIRC has proved that it can deliver, but will Fair Work Australia have the teeth and the will?
Greenfields agreements provisions that force employers to secure approval for a greenfields agreement from all unions that are eligible to represent members of a potential workforce will be a minefield for industry. Corporate lawyers are warning their clients of the difficulties they will experience when having to deal with every different union and with having a member in their particular project and potential workforce.
The Australian Mines and Metals Association chief executive, Steve Knott, was reported in the Financial Review of 28 November 2008 as saying:
… the provisions would open the door for union turf wars and allow unions to “hold employers to ransom. This will be a nightmare for major resource-sector construction projects that often require pre-start agreements to be registered with known terms and conditions before final investment decisions are approved”.
This provision in the bill has extremely serious ramifications for growth and development in Western Australia. The test of this bill, like every bill, is what it does for jobs and productivity.
It is with considerable delight that I rise to speak in support of the Fair Work Bill 2008. The Fair Work Bill 2008, combined with the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, which was introduced on the very first day of this parliament and which is now an act of this parliament, represents the culmination of a process that began with a commitment by the Labor Party in the lead-up to last year’s election. That commitment began with the Forward with Fairness document. That document, combined with a number of other statements, meant that there has never been a more comprehensive industrial platform put before the Australian people as was put before them in the 2007 election. Given the result that occurred on 24 November last year we can rightly claim on this side of this House to have a mandate for fulfilling the commitment that we made in the lead-up to the election. We fulfilled that mandate on the very first day of this parliament; we are fulfilling that mandate with the Fair Work Bill 2008.
That is not just a view of the Rudd government. It is, as we now know—at least, we think we know—a view of the opposition. On 25 November—last week—the Leader of the Opposition said:
The coalition accepts that the Rudd government has a mandate for workplace relations change as proposed in their election policy last year. The coalition accepts Work Choices is dead. The Australian people have spoken.
Never was a truer word said about the state of affairs when it comes to industrial relations. We have a mandate for doing what we do on this day.
There was extensive consultation leading up to the first bill, which was put before this parliament on the very first day. There was consultation with employer groups, unions and legal practitioners in the field. Since the first piece of legislation was put through this parliament, there has been further extensive consultation with employer associations, many unions and legal practitioners in the field, often through committees looking at industrial legislation. It is a difficult process to put industrial legislation through this parliament given the number of groups out there which quite legitimately feel that they ought to have a say in and influence over the way in which we regulate our workplaces in this country. It is a very significant achievement to have reached this day and to be debating this bill.
How that stands in contrast to the process which led to the Work Choices bill under the Howard government. By any measure, it was the signature piece of legislation of the final term of the Howard government. Most commentators would agree that it was the piece of legislation which meant that it was the final term of the Howard government. And yet, despite it being the signature piece of legislation for that term in government, not a word of it was breathed in the election of 2004 which gave rise to that term of government. It was a bill that was in effect rammed through this House in a month—almost in the dead of night. Despite there being 4,500 submissions, the Senate inquiry into the Work Choices bill lasted but one week. What we can absolutely say about the Work Choices legislation was that there was no mandate for it. Because of that, the Howard government is no more.
I congratulate the Deputy Prime Minister on the process which has led to this day. It is a great achievement. The difference in the process which has led to the Fair Work Bill compared to the process which led to the Work Choices bill says everything about the difference between the Howard government on the one hand and the Rudd government on the other.
This bill will restore fairness to the system. This bill will restore balance to the relationship between employers and employees. It will do that by putting in place a robust safety net. Through the national employment standards there will be 10 conditions. In addition to that, modern awards will provide another 10 conditions, including wages. Those 20 conditions will form a robust safety net. An agreements bargain on top of that will need to be better than those conditions over all and will not be able to remove the conditions set out in the National Employment Standards.
Importantly, there will be an annual wage adjustment. Also importantly, for the first time we are going to see awards adjusted every four years so that awards are kept up to date. Common-law agreements—common-law individual contracts—will be able to still be made and will be and always have been an important part of an industrial relations system. They will be made against the context of a safety net made up of the National Employment Standards and awards.
What we are putting through with the Fair Work Bill is an enterprise bargaining system. With the legislation that went through parliament at the beginning of this year, we absolutely rejected the Howard government legislated system of individual contracts called Australian workplace agreements. This is a bill which is based on collective bargaining at the enterprise level. For the first time, we will have a meaningful collective bargaining right, where if the majority of a workplace want to have collective bargaining then collective bargaining will occur. That will occur in good faith; good faith bargaining will form a part of the process which will lead to agreement, if indeed an agreement can be reached.
This is a critically important point. We have had in this country a system of collective bargaining since 1993 absent a collective bargaining right. In that, we have been the odd one out in modern developed economies around the world. In this bill, we fix that. There will be access to arbitration if the good faith bargaining provisions are flouted by any party—union, employee or employer. There will also be access to arbitration in circumstances in which there has been damage to the parties in the negotiation process.
Importantly, the bill provides for a low-paid bargaining stream, which will streamline the ability to have multi-employer agreements and, if needs be, first-contract arbitration. The bill provides for a far better right to unfair dismissal redress. The vast majority of employees will have access to that right. The bill will provide for freedom of association: freedom to be a part of a union or not to be a part of a union. Unlike the hollow provision in the Work Choices legislation, there is not just a right to be a member of a union; there is also a right to be represented by a union. That is a significant change from the Work Choices past. There will be a proper right of entry so that representatives of participants in the industrial relations system can enter workplaces and have meetings with the people who they represent.
Fair Work Australia will be a strong, independent umpire and a streamlined umpire, streamlining what are currently seven different agencies into one. The constitutional basis of the act is clarified so that now the act is entirely based on the corporations power, as opposed to previous incarnations of industrial legislation in this country which have in part at least been based on the conciliation and arbitration power. So, for those who have been practitioners in the system, there are no more logs of claims, no more funny ambits. We actually have a proper system and a streamlined system, and that in itself represents significant micro-economic reform.
This is a very important piece of legislation indeed. After the Work Choices era, it is right to describe this as great labour legislation, but it is great labour legislation because Labor legislation is fair legislation. It is industrial legislation which is consistent with the Australian ethic. It is industrial legislation which is consistent with international standards. There have over the years been a number of debates in the field of industrial relations, but the election last year, combined with this legislation and in a sense combined with the statement of the Leader of the Opposition, clarifies a number of those debates which have dogged industrial relations for most of the time since Federation—although we have to qualify that to some extent.
Having heard the pronouncements of the Leader of the Opposition, we hear different things from people on the other side. They still seem to be resistant to giving up the idea that they are the party of Work Choices, but it is clear, in the context of what the Australian people have said, that, to the extent that they hang on to those old notions, they are but a rump. They are a rump in this debate. What is clear is that we need a stable system of industrial legislation in this country. Industrial legislation in Australia has been the most amended piece of legislation in this parliament, with the exception of the tax act, since Federation, and that benefits absolutely nobody. But what we have now is the fair basis on which we ought to be able to achieve a national consensus around industrial relations.
One of those key debates has been a debate about the pre-eminence of individual bargaining versus the pre-eminence of collective bargaining. Those on the other side in relation to Work Choices stood for a proposition that individual bargaining ought to be the pre-eminent means by which we regulate our workplaces, whereas we on this side have said that, not exclusively but mainly, the basis on which we ought to regulate employment in our workplaces is through collective bargaining. There is nothing fair about a legislated scheme of individual contracts which seeks to undermine collective standards. There is nothing fair about a single employee earning $50,000 a year going one on one with their employer, a legal entity which may have revenue of $10 billion a year. There is nothing fair about that, particularly when it is their employer which has the right to hire and fire, particularly when it is their employer which has the right to pay wages and particularly when it is their employer who tells the employee what to do. Collective bargaining installs fairness into that situation.
That idea of fairness actually exists in other parts of our law. You can find it in the Trade Practices Act. Indeed, there is even a doctrine of unequal bargaining power which can be found in the common law. Not every Australian workplace agreement that was entered into was unfair, but a system of AWAs which sought to undermine collective bargaining standards was ultimately exploitative. We can say now that that debate is over. This is a country which stands for collective bargaining as being the principal means by which employers and employees regulate their terms and conditions of employment.
There is a debate between labour productivity and wage cutting—whether we seek to promote our economy through improving our labour productivity or whether we seek to do it, as the other side have sought to do it, by putting in place a system which cuts wages. That is an experiment which completely failed. What we saw with labour productivity under the Howard years was that it fell through the floor. Whereas the rate of growth in labour productivity towards the end of the 1990s was running at about four per cent, by 2005-06—immediately pre-Work Choices—it was down to 2.5 per cent and in the one year of Work Choices it went down to 0.9 per cent.
We saw a piece of legislation which absolutely cut wages and conditions. In that brief period where we had a window into what was going on with Australian workplace agreements, we saw 50 per cent of them provide for the removal of public holiday pay, we saw 65 per cent of them provide for the removal of penalty rates and we saw 70 per cent of them provide for the removal of shift work loadings. Whereas we on this side of the House envisage an economy which is based on high labour productivity generating high profits and generating the kinds of high-wage jobs that we would want to see in this economy, what we saw from those on that side of the House was a government under John Howard trying to promote cost-cutting—a cut-price economy, a low-wage economy, an economy where all you saw was the sweating out of meagre profits from the workplace. That debate too is now over. Work Choices is dead. The people have spoken.
The ultimate debate that can be seen in this legislation is a debate about whether you believe in cooperation in the workplace or conflict, and we stand for a system of industrial relations which promotes cooperation. What we saw from those on the other side was a system of workplace relations which promoted conflict. That could be seen in a whole range of other legislation and activities that were undertaken by the Howard government, compared to what we are now seeing under the Rudd government. Not only do we stand for cooperation at work, whereas they stood for conflict at work, we also stand for reconciliation with our Indigenous population, whereas the Howard government stood for a failure to recognise the past wrongs and a wilful blindness which allowed that sore to continue to divide our country. Whereas we have seen that we ought to treat those who flee to our shores with dignity, those opposite saw that we ought to treat those people with the very worst example of how mean the human spirit can be. Where we see that the way forward is to cooperate with state governments, they saw that the way forward was to roll over the top of state governments. They were in every way a government that was about dividing our country. This bill speaks to the intent of the Rudd government to commit to a unified Australia, and for that reason I commend it to the House.
He is Corio? Well, I do not think he is sitting in the right seat. I may be wrong about that. I had to look at the map as he is otherwise so undetectable in this place. I apologise for that if he is Corio. I used to like the fellow he rolled in the preselection, but there you go. The whole fact of life is that in his speech he mentioned inaccuracies like the fact that the Work Choices regime cut wages when in fact it increased real wages—that is, the purchasing power of a worker—by 22 per cent as compared to the zero per cent that was delivered by him and his union colleagues throughout the Hawke years and the accord. Of course, there are other matters to which I wish to attend.
It may be of no surprise to you that, back in 1981, I made my maiden speech and it was about industrial relations. Whereas many members come to this place to thank the people who supported them—they thank Granny and Mum and everyone else—I cut to the chase and my limited audience happened to include Bob Hawke. I had a little bit of a problem because I made ACTU an acronym and he was a bit confused every time I said the word ‘ACTU’. But we will not worry about that. I reread the speech today because I was looking for a quote that I think epitomises my view about this legislation.
I thank you for your interjection. You replaced Stewart McArthur, and one day when you make a speech in this place you will lift your head up so someone can see your face. I do not know who writes your speeches, mate, but you do not write them for yourself. You are about as dull as you could find. So, if you give me another chance, I will give you another expose on yourself. Stewart McArthur was a great individual in this place and could stand up and make a speech without notes—let alone the fact that he did not read it like this. You are dull—
Thank you very much; I agree with you entirely. I want to draw attention to the words I quoted at the time in that speech. I am endorsing this other person. These were the words of a noted left-wing British academic some years prior to my speech in 1981. He wrote a paper entitled‘Trade unionism is killing socialism—the English experience’, and he said:
Above all, the economic organisation of society, the way in which wealth is invested, and rewards distributed, to all of us who are its members, should have become the function of democratic governments.
I will carry on with his remarks. This is a bill that could have been just that if it had stopped before it started to give privilege, above all else, to a private enterprise organisation known as the trade union movement. He went on to say:
But this is not what has happened. The unions have refused to recognise the limits of their historical role. They have not only rejected the idea of a progressive abdication, and the shift of their social and economic function to the political process—
that is, this place—
but they have flatly declined to allow the smallest diminution of their power to press the sectional interests they represent.
Indeed they have steadily, ruthlessly and indiscriminately sought to increase that power. In recent years, and in particular in the last five years—
all that time ago—
they have exhausted or beaten down any opposition and have finally succeeded in making themselves the arbiters of the British economy. This has not come about as part of some deeply laid and carefully considered plan. It is not part of a plan at all.
It has been, essentially, a series of accidents. Huge unions each pursuing wage claims at any cost, having successfully smashed other elements in the state governments, political parties, private industry, nationalised boards—now find themselves amid the wreckage of a deserted battlefield. The undoubted victors.
They did not plan the victory—they do not know what to do with it now they have got it. Dazed and bewildered they are like medieval peasants who have burnt down the lord’s manor.
He stated further:
What next? They have no idea as they did not think ahead to this sort of situation, and indeed are not equipped by function or experience to embark on positive and constructive thinking.
A name like Mighell comes to mind. He continued:
That is not their job! Here we come to the heart of the matter. The trade union is a product of 19th century capitalism.
Let me remind you that the 19th century means the 1800s. He went on:
It is part of that system. Against powerful, highly organised and ruthless capitalist forces, it had an essential even noble part to play. But when those forces are disarmed, when they are in headlong retreat—indeed howling for mercy—the union has no function to perform.
They are not my words; they are the words of someone who had a fundamental view, as a socialist, that the role of industrial relations was a responsibility for government—and government does not need any helpers. This legislation retains the industrial ombudsman. So why in the heck have we got to have someone, self-appointed to the job, to go and demand people to pay his wages so he can interrupt their daily activities at work? Why should they have special privileges over anyone else?
Now we have had all the spin that workers can appoint any bargaining agent they like and I hope some might take that choice. I would be more comfortable if the legislation said that there had to be a 75 per cent positive vote amongst the total workforce for the purpose of appointing that agent. But that has been left out and the default mechanism appoints a trade union heavy. How is he going to build his membership? Remember that while there has been the legislation in place workers have discovered (a) confidence in themselves and of course (b) a belief that the money they paid to the trade union was not getting them very much at all. There is a heap of evidence of that.
So why does this legislation, the Fair Work Bill 2008, give standing to this special interest group, a trade union? They are nobody. They are not special. Why not give BHP or someone else standing within this legislation? Nobody else gets standing—why them? Who are they? They are a mob of people that get around, get themselves a job —and with a bit of hope they get here next—but the fact of life is that that is what is wrong with this legislation. I understand that people thought the previous rules were slan-ted too much towards the employer—that is, the poor devil who goes and mortgages his home to create some jobs. Of course, there will never be a law that requires people to make jobs. Since this legislation was on the drawing board they have been bail-ing out in their hundreds, including Boeing. Fisher and Paykel have gone to Thailand; they left Australia, taking 400 jobs. They just got out before their troubles started again.
Why do we have legislation in this House that gives special standing under the law to a group of people who claim to look after workers’ interests? I had nearly as long a period as an employer as I have had as a member of this House. I made my first speech on industrial relations because I was so browned off having to watch the great advances of the Pilbara, prior to my employment here, being destroyed and watching the Japanese going to Brazil. There was no financial value in the Japanese going to Brazil, considering the freight on a lowly valued product called iron ore—it is only a heap of rocks. They went there because they could not get delivery out of Western Australia. I will not go further down that track because there are other things that I want to say.
I want to go back to this legislation, which says that right of access is to be reinstated and which gives access to people’s private wage details. I am astounded to hear unions say, ‘We’re going to catch up on the bloke who gets more than his mate.’ Is that Australian? That is what they said. They have discovered market wages when it comes to a 457 visa. If you have market wages, why do you need a union to look after you? The market will decide—up or down. What I am saying is that the unions are entitled by this legislation—and I will fight that—to walk into a workplace, maybe with the one planted member out of a thousand, and view the records of other workers. Maybe they will or maybe they will not have the address of the person associated with those wage records. If they come off cards that is what they will have. Even if they do not have the address, as politicians today we all know how easy it is to find out where someone lives. Is it now possible that a woman will answer a knock on the door at 10 o’clock in the morning or at three o’clock in the afternoon to find two men standing outside to tell her that they know where her kids go to school and it is time hubby joined the union.
I read in the paper the other day that they do not do it that way any more. Ask Peter Baldwin about that. Ask Senator Cameron about that, when he got beaten up in much more recent times. He had to shift house. Who knows about that? Tell me that things have changed amongst those people who dominate in this sector. They beat up their own, why wouldn’t they beat up some recalcitrant poor devil who thinks buying shoes for his kids is more important than paying union fees and who trusts his boss because his boss and he have a drink every Friday night and a bit of a yarn and at any time he can tell his boss what he thinks about the pay or anything else?
I do not mind; you can rewrite the law. You can simplify the law and you can make it better for working people provided it achieves that outcome. But what you cannot do is to put this other mob in. It is interesting that having read what has been said by a British left-wing academic I also mentioned in my speech what has been said by the member—I was going to call him the member for Calwell again—
It is a worry when you cannot recognise people. He started to talk about the new Fair Work Australia organisation, which is going to attract all the industrial commission operators, mostly trade union people, or certainly industrial relations people. Do not ever think that those who are on the workers’ side have been very different in all this—it was a living. But the fact of life is that they are going to fill the positions of this new fairly balanced wonderful facility that is going to decide or arbitrate on certain issues.
It is interesting that the 1904 legislation made a very simple statement about what the old industrial relations commission should base its decisions on. I do not have the specific quote to hand but the statement talked about the basic justice of the system. And the fact of life is that in the 1978 decision Justice Moore said:
We agree that if the industrial effects of doing so—
that is, coming to his decision—
could be ignored, no increase at all in award wages would result in a greater restraint in costs and price.
In other words, the worker would be better off. That is the history. My father earned a £6 a week, raised four kids and owned his own house and a car, and my mother never had paid work. Today, he would earn $1,500 a week and if his wife did not work he could not afford a house. That is progress, apparently. Justice Moore went on to say:
However, we don’t believe that industrial considerations—
the effect of strikes—
and their attendant cost implications can be ignored.
In other words, the umpire said, ‘We succumb to the bullies.’ That is what they said in 1978, just 30 years ago almost to the day. We are told that we are going to have this new organisation that will not take those matters to account when it should not. And people should not think that when we open the door to the trade unions getting a bite of a greenfields agreement there are not going to be demarcation disputes. When somebody wants to open up a great job-fulfilling opportunity for the workers of Australia, in more difficult times than we are currently experiencing, the poor old developer has to jump all the green and other hurdles and then, when he is ready to start, he somehow has to work his way through five or six unions wanting the revenue, because that is what they want.
If you want to get someone to go and work in the Pilbara and in many of these other places that are substantial and that I know well, you do not get them by not offering enough wages. You want to be a politician in that part of the world and try to hire people on the wages this parliament pays! They do not make themselves available. I can go back a long way to when I had a trucking business. If I said to a truckie coming in looking to run line haul, ‘I’ll pay award wages,’ he would turn on his bare foot and go out the door. He wanted trip money; he wanted to be paid to go there and back. Of course, this is now held up as Work Choices and the ‘horrible decisions’ thereafter.
I am running out of time but I want to make one other point which I made in my speech in 1981. I heard the previous speaker talk about Work Choices cutting out penalty rates. Typically, when those AWAs were put together they amalgamated all of those rates into a single hourly rate. They did not cheat on people. But what about the people who do not want to work nine to five, Monday to Friday? What about the women at home who are looking around the house and wanting some new appliances and, as I know, go to the employer and say, ‘Could you just put me on on Saturdays while hubby is at home looking after the kids so I can get a bit of extra money?’ The employer says: ‘I lock the gate on Friday night, mate. Nobody can come into my establishment over the weekend. I cannot afford to pay the penalty rates.’ And the employee says, ‘No, don’t worry about that, I just want ordinary time.’ But, of course, the employer would be breaking the law to do so. What about those people?
Another thing I said is that you would think the fish did not bite on Wednesdays. Why does recreation have to be focused on two days a week? It is silly. Why can’t professional sport be played in the middle of the week and get a crowd, other than people taking the day off, taking a sickie? So these are silly arguments. Yes, of course, if you have worked your time you should get a penalty for overtime. And of course you can hold a view, religious or otherwise—and you can take a pick of three now: Islam, Seventh Day Adventist and Christian—about three days out of seven. They are silly ideas, they should not be reincorporated and they should never ever have been the reason for this legislation. Good legislation looking after working people is right. (Time expired)
Tuesday, 25 November 2008 was a defining day for Australia. On that day we saw the culmination of one of the most intense political battles that I can recall. For many, it was a battle for political survival. We saw intense activity by the Australian people, by industry sectors, by political parties and by the union movement. Tuesday, 25 November 2008 was a day on which working people across Australia had their dignity restored, their worth restored and their natural rights restored to them. It was the day the Rudd government delivered on another key election promise and introduced legislation that returned fairness and justice to Australia’s industrial relations system.
The Rudd government’s fair work laws are not simply about workplace rights. They are inherently about civil rights and about human rights—rights that Australians hold dearly; rights that, over the years, 102,000 Australians have lost their lives to defend, including one very recently; rights that are enshrined in the pledge of allegiance that is sworn by new Australian citizens. Let me quote parts of that pledge:
I pledge my loyalty to Australia and its people whose democratic beliefs I share … whose rights and liberties I respect.
Members opposite come into this place with their hands on their hearts, pronouncing the virtues of those very rights. Sadly, their words are not matched by their actions. I can think of no more glaring example of the shallowness of the opposition members’ commitment to those values than their Work Choices legislation. It was legislation which exposed the coalition for what it really stands for—as a party which puts economic growth and economic efficiency ahead of human rights and as a party which believes in and wants to maintain social division and class supremacy. The coalition members’ extreme Work Choices legislation, which the Rudd government’s new Fair Work Bill 2008 replaces, was socially divisive and socially unjust.
To those coalition members opposite who were in this parliament and in government, many of them as senior ministers, when their Work Choice legislation was rammed through the parliament, and to the member for Mayo, who had a personal hand in that legislation, I ask this: where was the justice in refusing to allow workers the right to have someone with experience negotiate working conditions on their behalf? Where was the justice when employers used skilled human resource managers to negotiate working conditions with workers who had no such skills? Where was the justice in having people who often had no education and sometimes no English language skills negotiate employment conditions with skilled human resource managers? And where was the justice in negotiating work conditions with working people who had mortgages to pay, families to feed and clothe, and no certainty of being employed if they refused to accept the employer’s employment conditions?
For working Australians there was no justice, no fairness and no choice. But the Australian people did have one choice. That was the choice to condemn the coalition members to the opposition benches of parliament, and the then reigning Prime Minister into political oblivion. And that is what they did on 24 November 2007, just as Australian voters had done with Prime Minister Stanley Bruce in 1929 when he too sought to treat working Australian workers with similar contempt, and destroy the conciliation and arbitration system and introduce the anti-union legislation, the Maritime Industries Bill.
Let me now turn to the question of human rights. Article 23 of the Universal Declaration of Human Rights states:
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Everyone, without any discrimination, has the right to equal pay for equal work.
Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
The coalition’s extreme Work Choice legislation breached all of those fundamental human rights and so did the coalition members who enacted that legislation. How can you guarantee equal pay for equal work when you have workers in the same workplace doing the same work on different workplace agreements? You simply cannot. What you do end up with is workers pitted against each other and an unproductive workplace.
But we should not be surprised that the coalition’s Work Choice laws were so extreme. Their track record on human rights was abysmal and history will portray it as such. We saw it with their anti-terrorist legislation. We saw it with the way they treated asylum seekers, and we saw it with the extreme powers they gave the Australian Building and Construction Commission. The coalition’s Work Choice laws were also clearly aimed at destroying the union movement in Australia. Again it was clearly in breach of Article 23 which also states:
Everyone has the right to form and join trade unions for the protection of his or her interests.
How could unions protect workers’ interests if they were barred from workplaces? Again, the coalition misjudged this issue badly, and the obsession and paranoia with unions has been very evident from coalition members’ contributions on this bill so far.
No government will ever destroy the will of the people. They may suppress it for a time but in the end the will of the people will prevail. From my experience most employers are fair and reasonable people. Most employers do not take advantage of their employees. Most employers are real people with children of their own. As employers, they understood how it could easily be their own children who would be exploited under the coalition’s Work Choice laws. Not surprisingly, during the 2007 election campaign, I came across many employers who told me that they were opposed to the coalition’s Work Choice laws.
A wolf will shed its fur but not its habits. Coalition members opposite may pronounce Work Choices dead, as many of them have. In name I am sure that Work Choices is dead. But coalition members’ conviction that working people should simply be grateful to their employer for giving them a job is alive and well, and it is that conviction which will drive their IR policies if ever they return to government. What we will then see is the same policies rebadged under a different name. We heard from speaker after speaker about their true beliefs when it comes to industrial relations laws.
Other members on this side of the House have spoken at length about the detail of the government’s Fair Work Bill and I do not intend to repeat what has been said many times over. I will summarise the bill though with these few remarks. The government’s Fair Work Bill is fair in name and fair in content—fair to both employers and to employees. It ensures decent work conditions reflective of a modern civil society. It provides for an independent umpire to arbitrate where agreement cannot be reached. It protects workers from unfair dismissal. It allows collective bargaining and union representation. It delivers on what millions of Australians voted for and what they expect.
And not surprisingly, this bill has broadly been welcomed by Australians across all sectors, not just by the union members, not just by the unions, but also by most of the industry sectors out there. It has been welcomed because they all accept and understand fairness in society and they also understand that this bill reflects fairness. It was put together after extensive consultation with unions, with working people, with members of parliament and with all of the industry sectors. And not surprisingly, it reflects a balanced outcome of all views that have been put by all of those sectors. That is exactly why this bill has received the very strong support that it has since it has been released. I commend this bill to the House and I feel proud to be a member of the Rudd government which delivered it.
I rise to speak on the Fair Work Bill 2008. Whilst I accept that the Australian people have spoken and the Rudd Labor government has been given a mandate for workplace relations change as proposed in their election policy last year, the government’s changes to workplace relations come at a very difficult time for Australian business and the Australian economy. We are being asked to take the government on trust that these changes have been carefully considered and will not cost jobs or, indeed, cause the closure of businesses already struggling with the increased pressures imposed on them in the current economic downturn.
Although I acknowledge that industry stakeholders support key elements of the bill, I question whether due consideration has been given to changes proposed by this bill as they relate to small businesses. The electorate of Hume is defined by the Australian Electoral Commission as a rural electorate and consists of three main areas: the south-west, including the towns of Yass, Young, Boorowa and Harden-Murrumburrah; the Southern Tablelands, including the towns of Goulburn, Taralga, Crookwell, Tarago and Marulan; and the Southern Highlands, including the towns of Mittagong, Moss Vale, Bowral and Bundanoon. By definition, the rural electorate of Hume survives literally on the activities of small businesses. Whether those small businesses be in farming, manufacturing, retail or service industries, they are in the majority owned by local families who employ local people and, more often than not, are staffed by 20 employees or less.
The Fair Work Bill 2008 has the potential to have a direct and disadvantageous effect on small businesses in the electorate of Hume. Quite a number of small business owners have told me they are worried about the effect that more regulation will have on their business. Most businesses not only in Hume but in other rural based electorates throughout the country are still struggling with the effects that the worst drought in 100 years has dealt them. Now, together with the effects of the world financial crisis, which I believe has not yet fully hit our country, they have to deal with the introduction of this Fair Work Bill.
Research conducted and published by Minter Ellison on 26 November 2008 in their HRIR update has revealed that there are a number of areas in the proposed bill that will have a direct and detrimental effect on small business. I have concerns about those areas. In the area of unfair dismissals, the new system will remove the 100 employee exemption introduced under Work Choices and, instead, introduce new qualifying periods that have to be met before an unfair dismissal claim can be made—12 months for employees of businesses with fewer than 15 employees and six months for employees of businesses with 15 or more employees. Casual employees will no longer be excluded but will have to meet the same qualifying periods as permanent employees provided that they have been employed on a regular and systemic basis for the requisite period and that they had a reasonable expectation of continuing employment by the employer. Minter Ellison describes other areas of concern:
Employees who are made redundant will be able to bring an unfair dismissal claim if they could have been redeployed—either within the employer or an associated entity. A redundant employee can also bring an unfair dismissal claim if the employer did not comply with consultation requirements in an industrial instrument. This provides significant scope for an employee to challenge their redundancy. Finally, the hearing process will be very different (with a hearing being able to be held during or after a conciliation conference and only on key issues) and lawyers can only appear with FWA’s (Fair Work Australia’s) permission. Appeal rights are limited (from July 1, 2009).
Transmission of business (or transfer of business as it will now be known)
In a transfer of business, transferring employees will be covered by the old employer’s industrial instruments indefinitely (not limited to a 12 month transmission period). New employees in the business transferred may also be covered in particular circumstances. But most importantly, a transfer of business includes an outsourcing, restructure or other transaction involving use of assets (probably from 1 January 2010—but possibly 1 July 2009).
Refusal to bargain with a union and requirement to negotiate agreement
An employer who is negotiating an enterprise agreement cannot refuse to bargain with a union with one or more members. Furthermore, an employer who does not want an enterprise agreement at all can be compelled to negotiate (but not to agree) if a majority of employees want one (from 1 July 2009).
Compulsory bargaining and arbitration for the low paid
Regulated, multi-employer based bargaining for the ‘low paid’—which appears to largely mean employees employed on, or close to, the award and national employment standards (but could potentially extend well beyond this). Most importantly, this could lead to arbitrated resolution by the FWA of the union’s outstanding claims—which is a fundamentally different type of arbitration than a safety net arbitration in accordance with minimum wage fixation principles. This could easily turn into massive, industry based bargaining and arbitration. Industries particularly affected are likely to include cleaning, retail, hospitality and child care (from 1 July 2009).
Injunctions to enforce awards and enterprise agreements
A union or employee will be able to obtain an injunction preventing an employer breaching an award or enterprise agreement. This could be very, very significant. Examples could include a union obtaining an injunction preventing a restructure if consultation provisions or redundancy procedures in an agreement were not followed; an employee obtaining an injunction preventing their dismissal if a disciplinary procedure in an agreement was breached; or a union enforcing a status quo provision in a dispute resolution procedure. Importantly, the Federal Magistrates Court will be able to issue such injunctions—not just the Federal Court (probably from 1 January 2010, but possibly 1 July 2009).
The provision that is of most concern to me is:
Increased right of entry powers
A union’s right of entry is now linked to either union membership (so they can enter to investigate a breach if they have a member who works on the premises) or union coverage (in the case of entry for discussions)—rather than the union being party to an applicable industrial instrument.
So a union can enter a workplace even if the staff are employed on AWAs or under a workplace agreement with another union and:
Unions can also require production within 14 days of any documents ‘relevant’ to a breach of the legislation or industrial instrument.
Such documents can include wages records and not just records relating to union members.
I find it totally reprehensible that after the introduction of this bill a union will have the right to enter a workplace and demand, among other things, the production of records pertaining to the wages of non-union members, even in workplaces where the employer and employees have previously agreed that they do not want unions. What right does a union have to demand to see the records of a small business that, more often than not, is a family business that has taken the risk of investing the family’s own capital and physical energy into their business, only to have someone come in and say that because of their hard work—and, I might add, a lot of the time it is unpaid hard work by the owners of the business—the union has the right to try and bargain for a better deal for the workers regardless of whether the employees are members of a union.
This means that unions can send their storm troopers back into all businesses, as this legislation unlocks the doors of virtually all of our workplaces. This is not a time when such moves can be imposed on a business without the benefits of a strong buffer and a robust small protection process such as those which were available under the Howard government. The Howard government’s record of getting people into jobs and keeping them there is without equal. It created and managed never-before-seen prosperity and growth, which has already been squandered by the Rudd Labor government. The test, of course, for the Rudd Labor government is simple: will this bill help people into jobs or put them out of jobs? Will this bill create or hinder growth? And will this bill weaken the labour market?
It comes as no surprise that the Fair Work Bill 2008 does deviate from election promises, such as Minister Gillard promising no compulsory arbitration. Now that is back in. The minister promised no pattern bargaining; now that is back in. It is back in by the government stealthily and quietly ushering it through the back door in a way that hopefully no-one would notice and was done apparently to appease those to whom Labor owes its biggest election debt—the unions. This is not surprising, given that very few government members have actually experienced the frustrations of wanting to work but being prevented from doing so because of continual strike action which resulted in many workers losing their jobs when businesses were forced to shut their doors. I speak from experience on that, and I am sure you know what I am talking about, Mr Deputy Speaker Adams, being a former meatworker yourself.
The fact is that the vast majority of businesses in Australia already treat their employees fairly by rewarding them with appropriate wages and benefits, not to mention other conditions conducive to creating a harmonious workplace, because businesses understand that not doing so will reduce productivity, thereby impacting on profitability and ultimately putting them out of business. Whilst I agree there is a need to ensure that the small percentage of businesses that do not heed proper workplace conditions, including proper remuneration for their staff, are pulled into line, I can only deduce that the introduction of this bill is a way to insert union-dominated dogma into all businesses and return to compulsory union membership, which by coercion and intimidation will attempt to increase union membership numbers above the current 14 per cent who are members nationwide.
It is apparent that the members of the Rudd Labor government are predictably intent on the ideological war on free enterprise. I embraced the issue of free enterprise many years ago as a young married man who saw union activity stifle people’s efforts to achieve through sheer hard work and personal endeavour. I also subscribe to the views of that great Liberal Sir Robert G Menzies, who had this to say in an address on 31 August 1945, when referring to freedom of business enterprise to establish itself and to expand:
When we recall that some of the greatest chapters in Australia’s industrial history have been written about small enterprises which succeeded and became large, we will realise how essential to the community structure and growth is the retention of the freedom of many thousands of citizens to establish themselves in the business of their own choice. It is on the protection of small business that the growth of general business and employment largely depends.
In closing might I reiterate that, whilst the Australian people may have given the Rudd Labor government a mandate for workplace relations changes, I do not believe for one minute that the Australian people have given the government or the unions the right to have our workplaces return to the bad old days of union domination that will cause unwarranted and crippling strikes, historically proven low productivity and, as a consequence of that, higher unemployment. Quite obviously, if there are no amendments which address my concerns regarding the rights, privacy and economic freedom of small business as outlined by me in my contribution tonight to this debate, I will not be supporting this bill.
I am pleased to speak in support of the Fair Work Bill 2008 tonight. This bill delivers on Labor’s election commitment to restore fairness and balance to Australia’s workplaces and to put an end to the extreme industrial relations laws of the Howard government. During the 11½ long years of the Howard government, there was an erosion of the protections of our industrial legislation and rights at work affecting all Australians. Contrary to the points of view put forward by some members opposite, the conservative-led attack on the rights of Australians at work has not been at the heart of some ideas contest between the major parties since Federation; it is a phenomenon of more recent times, championed by Liberal leaders such as John Howard, Jeff Kennett and Richard Court. These men unleashed an ideological attack, principally directed at trade unions in this country, but the real victims were the Australian ethos of a ‘fair go all round’ and, consequently, ordinary working Australians.
The previous government and current opposition fail to understand that it was our strong industrial legislation that enshrined the principle of a fair go. It was a conservative government that introduced the Conciliation and Arbitration Act 1904. At the time, the leader, Alfred Deakin, said:
It is sufficient for my purpose if it establishes the necessity of bringing both employers and employees under the control of the law, and of endeavouring to obtain the creation of an impartial tribunal which shall mete out even-handed justice between them.
He went on to say:
Its object is to forbid tyranny on both sides, and as far as may be possible, to introduce into our industrial system a new standard which shall apply to all the persons concerned, subject to the interests of the whole.
Balance and fairness were the values at the heart of our industrial system, values that were swept aside by a series of workplace relations laws introduced by the previous government, the most extreme being Work Choices in 2005. And what a series of workplace laws they were—a string of Orwellian bills. I describe them as Orwellian because the Ministry of Truth in George Orwell’s Nineteen Eighty-Four could not have done a better job on some of the titles of the Howard government’s workplace relations amendment bills. Terms like ‘protecting the low paid’ meant opening the way for employees on current award safety nets to have their wages and conditions stripped back; ‘fair dismissal’ meant allowing small business to sack employees unfairly without allowing the industrial umpire to become involved; ‘simplified agreement making’ meant reducing the scrutiny of the Industrial Relations Commission when making agreements; and the ‘registration and accountability of organisations’ meant imposing a regime on unions that the Howard government was unwilling to apply to large corporations or businesses. The only choice Work Choices provided was to sign or resign. In most cases, the coalition government’s workplace relations legislation was driven by ideological extremes—none more so than Work Choices.
Each member opposite has in some way conceded that Work Choices is dead, that Labor has a mandate to introduce this Fair Work Bill. However, their speeches illustrate that the ideological drive that created Work Choices still lives on in their hearts. I urge them to read Labor’s election policy, Forward with Fairness, so they understand the nature of the commitments given and the mandate received by Labor at the last election. Australians want safe and fair workplaces, where the realities of family life are appreciated and the dignity of working people is respected, and where everyone has the right to a fair go no matter how they are employed or engaged, be they employee, contractor or small business person. They want a fair day’s pay for a fair day’s work. They want the right to chose to bargain collectively, and they want an independent umpire to ensure that everyone participates in good faith.
Prior to entering the parliament in 2001, I spent most of my working life as an advocate for working people. Many of those years I spent as an industrial officer with the Miscellaneous Workers Union, a large union with members employed in a diverse range of industries and occupations, many low paid, many part time and the majority of whom were women. They were not industrially strong and their work skills were often undervalued. They were working people who often struggled to make ends meet. They are sometimes described as the invisible workforce, many of whom the member for Hume referred to tonight. They were childcare workers, cleaners, hospital workers, laundry workers, security guards, carers and home carers—people who are more often noticed when they are absent than valued for the work they perform.
Like other members in this House, I heard many personal stories from constituents about their experiences with Work Choices. I observed firsthand the impact that the coalition’s industrial relations policies had on these people and on people such as those I referred to in the union. In many cases their wages and standards of living went backwards. Much of our lives are involved with work, whether working for someone else or for ourselves. The nature of work, the composition of the workforce and the skills required are constantly changing. So are the patterns of work and the nature of employment arrangements.
But there was one constant, at least until the advent of the Howard government’s so-called Work Choices legislation: the minimum award safety net. No matter the type of employment arrangement, there were legal minimum payments below which it was unlawful to go. Work Choices changed that. It allowed employment arrangements to go below the award minimums. The Howard government’s own review of AWAs in May 2006 revealed that 64 per cent had cut annual leave loading, 63 per cent had cut penalty rates, 52 per cent had cut shift work loadings, 51 per cent had cut overtime loadings and 48 per cent had cut monetary allowances. This is what happens when you let the market rip in workplaces around the country.
That is why I am pleased to be part of the government that is introducing the Fair Work Bill. This bill creates again a comprehensive safety net that it is unlawful to go below. This bill provides unfair dismissal rights. I have to say that it was the loss of protection against unfair dismissal that offended many Australians, certainly in my electorate of Hasluck, especially parents and grandparents concerned about their children and their grandchildren and the kinds of workplaces of the future.
This bill also provides the low paid in our community with a real opportunity to bargain through the multi-employer stream. I represented for many years the contract cleaning industry in Western Australia. I have told the story before in the parliament that I oversaw a situation in Western Australia in late 1997 and 1998 where for the first time I witnessed the hourly rate go backwards for cleaners. People unfamiliar with the contract cleaning industry may not know but the majority of costs for an employer in that industry are labour costs. When the award safety net was in place, the competition between contract cleaning companies was about the service they offered or the techniques associated with their cleaning. After the introduction of the Howard government’s AWAs and individual contracts, suddenly the competition opened up on the labour costs that were associated there. What we witnessed in Western Australia was the driving down of the hourly rate from $11.10 per hour to $9.20. This was in modern Australia and I cannot believe that members opposite think that that is an appropriate, fair or balanced system of industrial relations.
Last November, Australians voted for Forward with Fairness, Labor’s election policy. They voted for a new system of industrial relations, one that would see a fair and comprehensive safety net of minimum employment conditions that cannot be stripped away; a system of fair workplace bargaining that requires the parties to bargain in good faith; protection from unfair dismissal; enhanced protections from discrimination and freedom of association; an ability to balance work and family; and the right to be represented in the workplace. This bill will also see the establishment of Fair Work Australia, a new independent umpire for advice and support for all workplace relations issues and enforcement of legal entitlements.
This bill represents a new beginning for Australian workplaces, a new industrial relations framework based again upon balance and fairness. I do not intend to go into each of the provisions of the bill in detail as that has been addressed by many other speakers. Tonight I would like to congratulate the Deputy Prime Minister and all the others involved in the drafting and preparation of this legislation. I also note and commend her on the consultation and involvement of a broad cross-section of parties involved in Australian workplaces in the development of this legislation.
I know that not each of those parties will get everything it wants in this legislation, but I guess one could argue there is no better indication that what this bill represents is balance and fairness if not everybody thinks they got what they wanted. Here tonight I want to urge members of the opposition to support the bill’s passage not only through this House but also through the Senate, to consider closely any proposed amendments that are put forward, given the broad cross-section of consultation and involvement in the development of the legislation, and not to be tempted again to go down the path of ideological opposition based on some paranoia about trade unions and their power in Australian society.
In concluding my comments tonight, I thought it was appropriate to again quote Alfred Deakin, the man who introduced the Conciliation and Arbitration Act in 1904, and some of the comments he had to say to opponents of that legislation, as his words resonate with truth even today. He said:
This bill starts with a confession that it is based on a humanitarian interpretation of the principles and obligations which form the very basis of civilised society. It leaves to its opponents the creed whose God is greed, whose devil is need, and whose paradise lies in the cheapest market.
I commend the bill to the House.
As I listen to the contributions of the Labor members on the Fair Work Bill 2008, I cannot help but feel that a lot of them either have not read it or, if they have, do not really comprehend what it will do to the Australian people in terms of job losses. It seems to me that they always have the attitude that, if you are inside the Labor tent, you can have a job and you matter. But if you are outside the Labor tent and you are in the business of providing yourself with a job and employing people—that is, in small business in particular—you do not warrant consideration; you are outside their tent.
The government used to describe Work Choices as ‘extreme’. That was the adjective that would be inserted in every comment that they ever made. But if Work Choices was extreme then the Fair Work legislation, which has an oxymoron for a title, is downright draconian. The bill goes far further than overturning Work Choices, which was what was taken to the electorate during the last election. There is no doubt in my mind that the omission from the Work Choices legislation of what came to be known as a fairness test, which was in the original reform legislation of the coalition back in the nineties and meant that nobody was worse off, from the time it was dealt with to this point in time, was an error.
It should have remained in the legislation because we are committed to that degree of fairness. I am committed to that degree of fairness. Indeed, I am committed to the concept of fairness all around. But when I see the word used as a political weapon, a piece of ideology, I get very angry.
This bill, in fact, delves back into the pre-Keating industrial relations reform era and returns to the unions the power they have long lusted after. I give credit to Mr Keating as the then Prime Minister and Treasurer before that for having the foresight to see that, in the interests of Australia, something had to be done about industrial relations. There will be people who can remember back to the time when Christmas time, this time of year, was the annual period of strikes, and different unions would take it in turn to strike. You would have people who would ensure that there was no petrol in the bowsers. It was not that petrol was expensive but just that it was not available. If you had an even number on your numberplate, you could get petrol on one day and those with odd numbers could get it the next day.
Then of course we had the ubiquitous postal strikes where you used to consider sending out your Christmas cards around October because you knew that there was a strike on the way. Unions would say, ‘It is your turn now,’ or ‘It’s our turn,’ and on and on it went. What happened is that when we came to power we did in fact bring about reforms in industrial relations. It was a hard period and a hard-fought period and the reforms were indeed ultimately passed with the agreement of the Democrats. That meant that we started to see a period of stability.
This bill repudiates the principle that was adhered to by both Keating and Howard of reining in the overarching power of the umpire. Back then it was the Industrial Relations Commission and now it is Fair Work Australia. But the whole bill is surrounded by smoke and mirrors. It is put up as a modern system. Perhaps it is postmodern. But it is put up as a modern system which it says refrains from returning power to the unions when in fact that is precisely what it does.
Paul Kelly’s article in the Weekend Australian has been quoted by many opposition speakers, and for good reason. In this climate where Minister Gillard has been lauded by all and sundry—and I have to say that I think she has found some very strange bedfellows who, when they wake up in the morning, might find that it was not such a good idea after all—the article has set out the ramifications of this legislation. The heading of the article is ‘IR reforms asking for trouble.’ Aside from setting out just what the bill does, Paul Kelly quotes a brief prepared by the law firm Freehills which points out the new methods of centralising wage fixing across an industry. Freehills is quoted as saying that:
… true non-union agreements are only possible, (1) in workplaces where there are no union members; or (2) where the union chooses not to be covered by an agreement.
Paul Kelly also quoted Peter Anderson, the director of the Australian Chamber of Commerce and Industry, on the way he believes unions will achieve pattern bargaining. The Deputy Prime Minister, as recently as her appearance on the 7.30 Report, has said it will definitely not occur, but in fact it will occur but under another name. Anderson says:
The Government is opening new avenues to multi-employer bargaining with industry-wide arbitration that has not existed before.
If you go to a document prepared by the Parliamentary Library, you will find a section called ‘Issues of concern to employers’. There are 10 such issues listed in their document. It begins with the unfair dismissal provisions. I will return to that in a moment because I think it is one of those issues which really cannot be allowed to stand. The second one, they say, is that:
In a transfer of business, transferring employees will be covered by the old employer’s industrial instruments indefinitely … New employees in the business transferred may also be covered in particular circumstances. But most importantly, a transfer of business includes an outsourcing, restructure or other transaction involving use of assets.
In other words, it is a disincentive for the sale of a business that somebody may (a) have built up or (b) be in need of selling. Because of the times that we find ourselves in they may find they are unable to do so because of these provisions.
The third thing that they say employers will be concerned about is the refusal-to-bargain provisions. The document says:
An employer who is negotiating an enterprise agreement cannot refuse to bargain with a union with one or more members. Furthermore, an employer who does not want an enterprise agreement at all can be compelled to negotiate (but not to agree) if a majority of employees want one.
In other words, the concept of how you undertake your negotiations is again prescribed by the legislation.
Then we have the new concept of good faith bargaining, protected action and arbitration. We know, of course, that the term ‘protected action’ means strike action. And you could well call this provision the Trojan Horse of the legislation because it really does allow a return to centralised wage fixing. The requirement to bargain in good faith and the ability of Fair Work Australia to arbitrate a workplace determination on competing claims if there are serious and repeated breaches of such orders means that Fair Work Australia may arbitrate a workplace determination in enterprise bargaining if strike action—that is, protected action—is causing significant harm to any employee and the employer. So, in a situation where there is a dispute, once again the centralised wage-fixing agency, now Fair Work Australia, will have the power to arbitrate.
We come to point No. 5 as outlined in the library’s assessment of the legislation: compulsory bargaining and arbitration for the low paid. This is precisely what was being referred to by the director of the Australian Chamber of Commerce and Industry. This will allow regulated multi-employer based bargaining for the low paid. There is no definition of low paid; however, it seems to largely mean employees employed on or close to the award. This can potentially be expanded, but that would seem to be contemplated in the legislation and not spelt out. This can lead to an arbitrated resolution by Fair Work Australia of the union’s outstanding claims, which is a fundamentally different type of arbitration than a safety net arbitration in accordance with the minimum wage fixation principles. This could easily turn into massive industry based bargaining and arbitration.
Industries particularly affected are likely to include cleaning, retail, hospitality and child care. In these times of financial turmoil, the hospitality industry is one that is going to be hit very hard. Already we are seeing evidence that people who would normally use restaurants and other food and drink outlets are buying food and taking it home. There is going to be great pressure on that industry. Many people are going to find that they simply cannot cope, but there will be those at the edge who are going to be able to hold out if things do not change too badly for them. But once you impose this situation upon them, whereby FWA can arbitrate, resulting in a payment being higher than the safety net payment, you will see many more proprietors going out the door—and jobs with them.
On this side of parliament we believe that the best thing that a government can create is the environment to assist a person to have a job. To be someone in work is so much preferable to being someone who is out of work and receiving welfare payments. Pride in yourself and pride in your family stems from the ability to work. When this government’s budget was brought down, it predicted that there would be a rise in unemployment of 134,000 people. Subsequent to that, we have had world financial turmoil. Predictions are now that unemployment could rise to six per cent. If we go back to the bad old days of the recession we had to have, in the Keating years, we will remember that unemployment went to over 10 per cent and we had one million people unemployed. If we start to see those numbers realised again in this circumstance, where our financial situation has become very much more precarious than it was previously, we will see a very slow return to work for those people who find themselves out of a job, because the industrial relations structure will mean it is prolonged.
The sixth point that the paper makes is for injunctions to enforce awards in enterprise agreements. A union or employee will be able to obtain an injunction preventing an employer breaching an award or enterprise agreement. Examples could include a union obtaining an injunction preventing a restructure of a business if consultation provisions or redundancy procedures in an agreement were not followed; an employee obtaining an injunction preventing their dismissal if a disciplinary procedure in an agreement was breached; or a union enforcing a status quo provision in a dispute resolution procedure.
The seventh problem that they see for employers is AWAs and ITEAs and what to do with new employees. Utilising individual flexibility arrangements may be a way to go, and that perhaps is the only ray of hope in this legislation—that, subsequently, individual flexibility arrangements may in fact allow for individual agreements. The eighth problem raised is award modernisation. What changes to minimum terms and conditions will result from this modernisation process, especially for employees who are currently award free? Fair Work Australia will also be able to make orders to ensure that an employee does not lose take-home pay as a consequence of award modernisation. How will it be interpreted? How will it be imposed? There are transitional questions dealing with collective agreements, and ITEAs being negotiated will now be subject to the provisions that the act sets out.
The 10th, and very serious, issue is the increased right of entry powers. This is truly where unions are being given their payback. The trade unions spent $15 million minimum to get this Labor government elected, and they want the money back. The way they will aim to get the money back is by seeing their membership increase, by non-union members being forced to pay a fee for negotiations, by a return to their place of influence and by exercising that influence to keep union membership high. Currently, in the private sector only 14 per cent of workers are covered by a union. That is the real aim of this piece of legislation.
I want to deal specifically with the unfair dismissal provisions and in detail with the increased right of entry powers in the little time that I have left. Unfair dismissal became the greatest burden that small business had to bear. They became used to being subject to the ‘go away money’ payments. Disgruntled employees who legitimately should no longer be employed by that employer could start vexatious or any form of proceedings they wished and, because the employer could not afford the time off work or the angst of preparing a case and paying lawyers, the employer would simply pay a lump sum to the employee to go away. This legislation brings that all back.
We said that those unfair dismissal provisions should be gotten rid of for firms of under 20 employees. We took that to two elections. We had a mandate for that. Did the Labor Party acknowledge that mandate? No. And yet they say that they have a mandate to do what they are doing in this legislation. In part, you can argue that they do. But, in a moral sense, how can they ask that their mandate be honoured when they refused to honour the mandate of a previous government? We will again see small businesses simply refrain from employing people; refrain from taking the risk that they will have to pay ‘go away money’.
The increased right of entry provision is an extraordinary provision. It will allow, virtually unfettered, a union to enter any workplace for discussion—and for ‘discussion’ read ‘recruitment’—or for inspection to see if there is a breach. Whatever the reason, they then get access to the records of employees, which they can copy and keep. They can get the records of non-union employees. They can demand documentation. And there is no holding back on the part of the employer, because this legislation gives all the power to the unions to demand those records. How would you feel if you were a small business person or an employee and all your records were handed over with you having no say? Those two parts of the legislation are going to deny people jobs and pass information to unions to which they have no right. They are indefensible parts of the legislation.
There are many parts of this legislation in need of reform and in need of amendment. I have said that it will impede recovery. One can ask this question: how many jobless will be sacrificed on the altar of union power? Here in the Lower House we are impotent to change the legislation, because we do not have the numbers. But we can stand up and say that we are appalled by it. I am pleased to read the comments of the two Independent senators, Senator Xenophon and Senator Fielding, which are basically in accord with many of those that I have made tonight. I hope that we will see some justice for those people who are going to be left out in the cold and that we will not see more people sacrificed—(Time expired)
On 24 November 2007 we as a nation breathed a collective sigh of relief. It was the day on which across the country workers and their families could look forward with confidence to the return of fairness in the workplace. That is why I rise today to add my voice to that of those in support of the Rudd government’s Fair Work Bill 2008. In the aftermath of the 2004 election, rights and conditions which had been hard fought for were stripped away in the blink of an eye. Those opposite took advantage of the trust that the Australian people had shown in them, and the result was Work Choices.
As a government, we are keeping the deal that we struck with the Australian people. We said that we would do away with Work Choices and return fairness and balance to the workplace. Earlier this year, the Deputy Prime Minister introduced the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008. That effectively brought an end to the Australian workplace agreements and allowed the process of award modernisation to begin. The bill to which I speak today builds upon this and paves the way for a new workplace relations system. This bill will take effect from 1 July 2009. This legislation allows us the luxury of looking forward with optimism to a system in which the most basic principles of fairness will be at work.
This will be a system built upon some basic yet fundamental principles: notions like a fair day’s work for a fair day’s pay. That seems somewhat basic, and yet it was this premise which was casually and callously tossed aside by the previous government. Work Choices stripped away rights and allowed the worst employers to adopt a divide and conquer approach when it came to negotiating with workers.
That is not to say that this was the case in all workplaces, because it was not. There are in my electorate of Bass some wonderful, fair and generous employers. But—and this needs to be said—that is not always the case. At its worse, Work Choices took advantage of the most vulnerable in the workplace: young people going for their first job, single mothers, long-term casuals and the low paid. Essentially, it allowed employers to make demands, however unreasonable, and force the hands of those most vulnerable to acquiesce.
The following statement has been well documented in this House. However, it is still something that has the power to shock me. It is the admission from the former workplace relations minister, Joe Hockey, when he told the ABC’s Four Corners program:
I don’t think many ministers in cabinet were aware that you could be worse off under WorkChoices, and that you could actually have certain conditions taken away.
Once I started to raise those issues with colleagues and they became more informed of the impact of WorkChoices, we introduced the fairness test.
It must be noted that the so-called fairness test did little to redress the gross imbalance in workplaces the country over. I was and still am shocked by that admission. It says so much about the cavalier attitude of those opposite to workers and their families.
As I campaigned last year, I travelled the length and breadth of Bass and there were many recurring issues which troubled people in northern Tasmania. One thing which came through loud and clear was that people had not voted for Work Choices. They did not know that the first thing that a power-drunk coalition would do was strip away their security.
Grandparents were concerned for the future of their children and grandchildren. Young people feared for the conditions under which they would be introduced to working life, and they were justified in being concerned. One company in Tasmania negotiated an AWA which stripped away penalty rates, overtime and annual leave loading, and in return workers received an additional 2c an hour. Another company forced an agreement on workers which specifically excluded rest breaks, incentive based payments and bonuses, annual leave loadings, observance of public holidays, overtime payments, shift work allowances and penalty rates.
Order! The debate is interrupted in accordance with standing order 34. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting. The member will have leave to continue speaking when the debate is resumed.