Julia Gillard (Lalor, Australian Labor Party, Deputy Leader of the Opposition) Share this | Hansard source

The APEC Public Holiday Bill 2007 deals with the question of a public holiday to assist with security arrangements around APEC. Under Labor, Australia was a foundation member of APEC and Labor was a driving force behind its establishment. Labor welcomes the return of the APEC summit to Australia in 2007 but notes that, based on other profile summits held in Australasia and southern Asia, it presents security challenges. Labor supports arrangements to ensure the security of the APEC summit, including the provision of a public holiday on 7 September 2007 to allow for the smoother and safer running of the event. Consequently, Labor will support this bill, the purpose of which is to make the arrangement so that 7 September 2007 can be a public holiday in relevant Sydney local government areas under various federal industrial instruments—generally those industrial instruments made prior to the commencement of the Work Choices changes.

Under the Workplace Relations Act 1996 employees in the federal industrial relations system are generally entitled to public holidays declared by or under the law of a state to be observed within a region of that state. However, this general entitlement does not extend to employees employed under certain types of federal instruments that were made before or upon the commencement of the Work Choices changes to the Workplace Relations Act. Employees employed under those instruments are entitled to public holidays only in accordance with the terms of the instrument. Many of those instruments may only provide for public holidays that are declared for the whole of the state. As a result, the localised APEC public holiday would not necessarily be treated as a public holiday under those instruments. This bill addresses that situation to ensure that the APEC public holiday will be treated as a public holiday under those instruments. Usually this will mean that employees will be entitled to a day off or penalty rates of pay under the instruments, if they work. I will come back to the matter of penalty rates shortly.

Employees affected are those employed under the following instruments in the federal industrial relations system: a transitional award—that is, an award that covers employees of employers who were part of the federal system prior to the Work Choices changes but, because they are not constitutional corporations, are excluded from the mainstream industrial relations system; a pre-reform AWA—that is, an individual Australian workplace agreement made prior to the commencement of the Work Choices changes; a pre-reform certified agreement—that is, a collective agreement made prior to the commencement of Work Choices; a section 170MX award—that is, a limited award made prior to the commencement of Work Choices when arbitration followed the termination of a bargaining period for a collective agreement, usually for reasons associated with industrial action that might harm the economy or the safety, health or welfare of the population; an old industrial relations agreement—that is, an agreement made prior to the commencement of the 1996 changes to the Workplace Relations Act that is binding on employers that, because they are not constitutional corporations, are excluded from the mainstream industrial relations system; and, finally, a preserved state agreement—that is, an enterprise bargaining agreement made under state laws prior to the commencement of the Work Choices changes as it applies to employers who are now part of the federal system. If you are confused, Mr Deputy Speaker, you, like the rest of the Australian community, have cause to be. The Howard government promised, when it introduced the Work Choices changes, to introduce a simpler system to this country. I defy anybody following this debate to say that this is a simpler system. With all its mind-numbing complexity, it comes with $1.8 billion of bureaucracy as well—the heaviest burden of bureaucracy from industrial relations that this country has ever borne.

Clause 7 of the bill provides that regulations of a transitional saving or application nature arising out of or relating to the provisions of the act may be made that provide, for the purposes of a law of the Commonwealth or an instrument made under the law, that the APEC public holiday is taken to be a public holiday or taken not to be a public holiday. Clause 7(3) provides that those regulations may be made retrospectively. The explanatory memorandum says that this provision is required because:

It is possible that under a particular law of the Commonwealth, or under an instrument made under such a law, anomalous circumstances could arise which have not been provided by the provisions of the Bill, or in which the provisions of the Bill would have unintended consequences. Proposed subclause 7(2) would allow regulations to be made to remedy any unforeseen or unintended consequences that may arise.

This, of course, is a complex piece of machinery in terms of the regulations, and I do note that the explanatory memorandum does not provide any examples of the unintended consequences that could arise. It is likely that regulations will need to be made under clause 55 of schedule 8 to the Workplace Relations Act to ensure that section 612(4) of the act operates in relation to notional agreements preserving state awards—the so-called NAPSAs—in the same way that it operates in relation to awards and workplace agreements. If those regulations are not made, a term in a NAPSA that is contrary to the entitlement to the APEC public holiday, subject to a request to work, could have effect. Yes, complex indeed!

We note that the government is going to move a series of amendments to the bill, having apparently twigged to the problem that, despite all of the complexity which this bill comprehends and the complex industrial relations system of the government’s making that it is relating to, there were remaining issues about penalty rates and whether or not people who are required to work on the APEC public holiday would have an entitlement to penalty rates—that is, whether or not any entitlement in their underlying industrial instrument would be sufficient to deal with the question of penalty rates for them. Of course, Labor welcomes any clarification on the question of proper payment for people should they be required to work the APEC public holiday because they are in occupations where it is necessary for them to work through. Having said that, one would be entitled to a bit of bemusement at this grand irony that the government should, in a pre-election bill, be turning its mind to the question of penalty rates and their provision to people when, in the design of Work Choices itself, the government made sure that there was a system that could have people working without penalty rates.

We have to remind ourselves—and it is now a matter of public record in the Prime Minister’s biography—that, when the Work Choices legislation was submitted to cabinet and considered around the cabinet table, the government knew that there would be losers under their new system and they determined to proceed with it in any event. Indeed, that was not a simple act of omission, a question of there being some things that they could remedy which would have ensured that there were not losers. It was fundamental to the design of Work Choices that people could lose. The government, in its so-called information booklet for Work Choices, which of course was nothing more than a piece of propaganda, invited employers to strip entitlements off employees by giving the example of Billy, who had a minimum-wage job and who had lost all of his entitlement to penalty rates and overtime. So this government invited employers to make such agreements, having made them perfectly lawful, and then propagandised on their availability.

The government likes to criticise everybody else’s research, as we know and as we saw the Minister for Employment and Workplace Relations do today when he criticised research about women and Work Choices. We also know that this government has never opened the books to tell Australians the full story about what its Work Choices changes have done to the working conditions of Australian families. It has deliberately covered up the Australian workplace agreements that have stripped penalty rates and other conditions. What we do know on the public record—not because the government gave the information voluntarily but because either it was forced out of them at Senate estimates or it subsequently leaked—is that, of the Australians who have signed Australian workplace agreements, 44 per cent have had stripped off them all the conditions that Mr Howard’s very expensive advertising told them would be protected by law. There is some grand irony that the government is now scurrying around making amendments relating to penalty rates when it has created a system purpose-designed to enable entitlements to things like penalty rates to be stripped away.

Mr Hockey, the Minister for Employment and Workplace Relations, is out there trying to give the community the impression that these matters are now resolved by the latest changes to Work Choices. Of course, that is not true. Even under the government’s so-called fairness test—the recent changes to Work Choices—there is no guarantee that an employee will be granted full compensation for lost public holiday penalty rates. The employee’s compensation for lost penalty rates will depend on what the employer decides to tell the Workplace Authority about the employee’s obligation to work on public holidays throughout the five-year life of the agreement.

The Workplace Authority’s own policy says that employees will only be contacted if the lodgement does not contain sufficient information—that is, the employer puts in all of the information, including the information about public holidays, and from the point of view of the Workplace Authority, except in the exceptional case, the views of the employee about the fairness of these arrangements will not even be sought. From what we know of its operations, the Workplace Authority will not even take a critical view of the information provided and it will not contact employees if it doubts the veracity of the information provided; it will only contact them if there is not sufficient information. The Workplace Authority is not required to provide information to employees on why it reached a decision that an agreement passed the so-called fairness test, so an employee might never know that he or she is being ripped off in relation to their public holiday penalty rates.

By its design of Work Choices the government has shown the Australian community that it has no respect for public holidays and other important conditions of hardworking Australian families. Under the government’s workplace relations legislation, an employee is only entitled to refuse to work on a public holiday if the employee can prove that the employee had reasonable grounds to refuse the public holiday work. In determining the reasonableness of the employee’s refusal, regard must be had to a lengthy list of factors set out in the legislation, including the nature of the employee’s workplace, whether a workplace agreement might require the employee to work and the nature of the work performed by the employee.

As we know, the government is enforcing that all employers hand out a propaganda sheet, curiously titled a ‘workplace relations fact sheet’, by 20 October to each employee. If they do not do this, of course, they will be dragged through the courts and fined. Nowhere on that fact sheet does it mention that employees are entitled to refuse a request to work on public holidays. Somehow employees are expected to be aware of sections 612 and 613 of the government’s obscenely lengthy and complex industrial relations laws. The government claims that it is providing employees with information, but it is very selective about what information it provides.

In terms of the lack of regard by the government for public holidays in this community, it should be noted that all government members voted against amendments moved by Labor in connection with the Workplace Relations Amendment (A Stronger Safety Net) Bill that provided special protection for employees who have religious or ceremonial commitments on Christmas Day, Good Friday and Anzac Day. For example, an employee wishing to attend religious activities on Christmas Day or Good Friday would, under Labor’s amendment, have been taken to have reasonable grounds for refusing a request to work on those days. Each and every member of the government voted against that.

Under Labor’s amendments, an employee wishing to attend commemorative events on Anzac Day or wishing support the attendance of a family member at such events on Anzac Day would be taken to have reasonable grounds for refusing a request to work on Anzac Day. The government members, to a person, each and every one of them, voted against that. So it is on the record in Work Choices itself and in relation to the government’s response to Labor’s amendments that the government does not believe it is appropriate to provide Australians with proper protections for public holidays.

Once again, the government shows contempt for the legislation-making process by including, as I have noted, a broad, retrospective regulation-making power that could potentially reverse employees’ entitlements to public holidays or payments on public holidays, and why this is required has not been adequately explained in the explanatory memorandum.

As we know, the government’s Work Choices legislation is riddled with examples of the government using regulation-making powers to circumvent the legislative process. For example, the content of agreements made between parties is subject to the whim of regulations made by the government, and this is unfair to both employers and employees. Similarly, the government can simply determine in regulations whether an agreement provides a more favourable outcome than the Australian fair pay and conditions standard in a particular respect. Labor will ensure that Australians get proper protections for public holidays in a fair and balanced industrial relations system, one that ensures that these important conditions can be relied upon by Australian workers and not stripped away.

Whilst I have made those critical remarks about Work Choices and about this government’s lack of respect for public holidays and for the ability of Australian families to take those public holidays together, Labor will be supporting this bill because of the security arrangements surrounding APEC. However, I will at the conclusion of my remarks move a second reading amendment about the question of fairness and balance at work and beyond work.

I have given notice to the Minister for Vocational and Further Education at the table that my colleague the member for Cowan, Graham Edwards, when he speaks in this debate, will make a series of broader remarks. As we all know, Graham is not contesting the forthcoming federal election, whenever that may be, and will use this opportunity to make some remarks in what may be one of the last sitting days before that election is held. Mr Deputy Speaker, I seek your indulgence—and I understand the minister has no difficulties with this indulgence—to record that, as members of this House are undoubtedly aware, and particularly members on the Labor side, Graham has a long and distinguished record of selfless work serving his community, his state and his nation. Both Graham and I were elected to this place in October 1998—we are part of the class of 1998—Graham coming in as the member for Cowan and me as the member for Lalor. I would very cheerfully concede he came to this place as someone with far greater life experience than I or I think any other member of the class of 1998.

Graham has served at all levels of government. It is a trifecta. He served as a councillor with the City of Stirling and as an officer with the Commonwealth Department of Defence, the Commonwealth Department of Veterans’ Affairs and the Vietnam Veterans Counselling Service. Between 1983 and 1997, before his election to this place, Graham was a member of the legislative council of the Western Australian parliament—an achievement which many people would have thought was more than enough without coming to this place in 1998 and serving the years in between. When he was in state parliament Graham served as the Minister for Sport and Recreation, the Minister for Racing and Gaming, the Minister for Youth, the Minister for Police and Emergency Services and the Minister for the Aged over a period of four years between 1987 and 1991. Recording the breadth of those ministerial offices shows just how much of a contribution Graham made in state politics to his home state of Western Australia. Graham has made a great contribution here as the member for Cowan serving his local community but also as a very valued member of the Labor opposition—a man with a breadth of expertise across defence matters particularly but also well beyond.

As I think is fairly well known in this place, Graham served this country in the Regular Army for three years between 1968 and 1970, during which time he engaged in active service in Vietnam as a member of the Pioneer Platoon, 7th Battalion, Royal Australian Regiment. During that service Graham lost both his legs in a landmine blast. On returning to Australia, having received what anybody would have defined as the blow of a lifetime, instead of simply turning inwards Graham turned outwards and commenced a life of contribution to public service, and in particular a life of contribution specifically to the affairs of Australian veterans and their families. There would not be too many people who, for a lifetime, can say that they were presented with such adversity and overcame it. Graham can certainly say that.

Before moving the second reading amendment, I refer to a letter that Graham wrote to the member for Brand and then Leader of the Opposition last year on Vietnam Veterans Day and the 40th anniversary of the Battle of Long Tan. In that letter, which I think summarises Graham’s inherent sense of decency and forgiveness, he said:

In closing Kim I want to say I am proud to have served my nation and proud of all who served with me. I am proud of my mates and the contribution they made to Australia. I take pride in the mateship. I don’t need anyone’s apology for that.

We are proud to have served with Graham in different circumstances. That is a very heartfelt contribution from the Labor caucus, and I am pleased to have had the opportunity, with your indulgence, Mr Deputy Speaker, to have recorded those remarks.

See this speech in context