Alby Schultz (Hume, Liberal Party) Share this | Hansard source

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:

Unfair dismissals

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.

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