Paul Fletcher (Bradfield, Liberal Party) Share this | Hansard source

The Minister for Science and Research is a former secretary of the Shop, Distributive and Allied Employees' Association. The Minister for Immigration and Citizenship is a former assistant national secretary of the Australian Services Union. The Minister for Finance and Deregulation formerly worked for the CFMEU as an industrial officer and was a legal officer with the Liquor, Hospitality and Miscellaneous Union. The Minister for Broadband, Communications and the Digital Economy was at one point a superannuation officer with the Transport Workers' Union. The minister for sustainability was an organiser for the Shop, Distributive and Allied Employees' Association.

It is beyond doubt that this is a government which is redolent of protecting the interests of the union movement. But in this bill the Rudd-Gillard government has abandoned even the most threadbare pretence of governing in the national interest. This bill has one purpose only—to deliver to the Labor Party's paymasters in the union movement the measures they are demanding as the price for their continued support of this hopeless government. The compelling evidence for that claim includes the stark contrast between the position the Prime Minister took when she had portfolio responsibility in this area in 2010, and the position which Minister Shorten is widely expected to take when he introduces amendments to this bill to reinstate compulsory arbitration.

We know that the peak Victorian union bodies responded when the minister withdrew compulsory arbitration provisions from an earlier draft by threatening to withhold all but lukewarm support for Labor at the forthcoming federal election, with Victorian Trades Hall Council secretary, Brian Boyd, reported as saying that the unions were reserving their judgement on the level of support they would give to Labor in federal marginal seats in Victoria. He had this to say:

It is in the balance. A worthwhile package has to come out the other end of the parliamentary process.

And there is a stark contrast between the position that the minister is widely expected to take in reintroducing these compulsory arbitration provisions with the advice given by the Prime Minister, when she was then minister for workplace relations, to the ACTU in a letter in which she said that to reintroduce such provisions involved significant risks, including the risk of constitutional challenge. The return to compulsory arbitration would be a dreadful idea and a return to the bad old days of lower productivity and fewer jobs.

Let me give it another example of how the provisions in this bill respond to the agenda of the union bosses. I am referring to the measure which would enshrine penalty rates in modern awards, proposed section 134(1)(da). This was not a measure which was suggested by the Fair Work Review panel, so where did it come from? It came from Mr Dave Oliver, the Secretary of the ACTU, in a speech he gave on 6 February 2013, when he said:

… we'll be asking the government to enshrine penalty rates for weekends in legislation, and protect it forever.

It seems the union bosses are supremely confident that this government will sit, beg and roll over when they whistle, so much so that the ACTU boss is not even bothering to conceal the extent to which he is directing this government.

This is a bill which demonstrates poor policy and poor process, and there has been little attempt to systematically address the key recommendations of the Fair Work review. Once again, we see the tawdry spectacle of this government granting itself an exemption from the general requirement for a regulatory impact statement, which is a sure indication of poor process and of something to hide, particularly in a bill which will affect every employer and every employee in Australia. No doubt the rushed nature of the process in this bill explains the concerns raised in many submissions to the Senate committee. Indeed, a great majority of those submissions offered suggested amendments with a view to giving greater clarity. This is an indictment of the loose, careless and imprecise provisions of this bill.

This government has failed to do the detailed work of consultation to ensure that the bill's provisions are drafted with sufficient clarity. Sadly, this is an all-too-familiar story with the Minister for Employment and Workplace Relations. I think we can be confident that when he was a student at Melbourne's exclusive Xavier College his nickname was not 'Details' Shorten. Let me give as one example the provision in the bill, proposed section 145A, which would require employers to consult regarding roster changes. I quote Mr Barklamb, of the Australian Mining and Metals Association, who appeared before the Senate committee:

… no roster change would be too small to trigger the new consultation requirements, which may act as a veto on implementing essential changes if misused.

Once again, no case has been made to depart from the existing approach.

The vast bulk of this bill does not deal with recommendations arising from the Fair Work review.

At the same time, the bill conspicuously fails to deal with two matters which it should have taken up. The first is the High Court's unanimous judgement in Barclay v Bendigo TAFE, which found that union bosses should not be an untouchable class in the workplace—a recommendation that was also made by the review panel. The judgement in that case followed the present minister intervening in the High Court on the side of the union boss, Mr Barclay, arguing that it was the intention of the Fair Work Act that union bosses were untouchable even if they did the wrong thing. It is clear from the judgement of Mr Justice Heydon that the minister's intervention was extremely ill-judged. The judgement says:

… the Minister's stance before and during the oral hearing was not that of an intervener, but that of a partisan.

A second area that the bill should address is that before the 2007 election then opposition leader Kevin Rudd pledged that the Fair Work Act would not allow the return of 'strike first talk later'; yet the recent decision of the Federal Court in the JJ Richards case tells a different story. As the case demonstrates, the Fair Work Act as presently drafted gives unions the power to obtain protected action ballots in circumstances where most reasonable people would argue that it should not be allowed. If Labor were fair dinkum in living up to its promise on this point, it would have included amendments to the act in this bill in response to the JJ Richards case, which tells us that as presently drafted the legislation does not live up to the promise made by the then opposition leader in 2007.

The third point I want to come to is that the provisions of this bill will do serious economic damage while the benefits they purportedly deliver are illusory. I have referred already to the provisions of this bill which impose a requirement that every modern award should contain penalty rates for weekend work. On this side of the parliament we do not believe that the parliament should be in the business of legislating the details of each and every modern award, particularly taking account of the flexibility that may be required in particular sectors. This provision would have a serious impact on many industries where weekend work is commonplace and expected, such as real estate. I would like to quote from a letter I received from one real estate agent in my electorate, who said:

… weekends and evenings are important for my real estate agency to do business as they are the most practical and effective time to conduct open for inspections, to conduct property management inspections, to show properties to potential purchasers and/or tenants, for sales staff to attend listing appointments/appraisals, to conduct auctions, for phone canvassing, for cold calling and for tenants to pay their rent to the agency etc.

If penalty rates for weekend (or evening) work became part of the Award, my real estate agency would suffer financially due to the increased costs associated with the penalty rates. This could lead to a reduction in the number of employees that our agency currently employs and changes to the staff rostering on weekends which may decrease the hours some staff work … Unfortunately this will no doubt affect the rate of employment in the … area.

This is an excellent example of the kind of economic damage this ill-considered measure could cause.

We have heard a fair bit from speakers for the government about the benefits this bill purports to deliver by improving the position for victims of workplace bullying. The government has used a fairly obvious parliamentary tactic here, by responding to a quite separate report on workplace bullying, which was not a matter extensively considered in the government's own recent Fair Work review. They have done that, and included these provisions in this bill in an attempt to disguise the extent to which this bill hands over a tray full of goodies to the union bosses.

On the question of workplace bullying, let there be no doubt: the coalition takes workplace bullying very seriously, and we support proposals to strengthen the system to stamp out such conduct. However, we are concerned that the changes proposed by this bill would allow a worker who alleges that he or she has been bullied to lodge a claim with the Fair Work Commission without having first sought any preliminary help or advice. This would have significant consequences for employers and would also materially the increase the workload of the Fair Work Commission.

We have therefore suggested two key changes, which we believe need to be made to these provisions. The first would require that workers must first have sought preliminary advice or assistance from a regulator before lodging a claim, and the second—very importantly—would expand the provision to include the conduct of union officials. Union officials should not be above the law, and if they engage in workplace bullying they ought to be subject to any provisions of the law which deal with such conduct. That should be a principle which is so obvious that it is not even necessary to articulate it. But unfortunately, given the government we presently have, it is necessary to make that principle an explicit one.

The bill before the House today is in substance an effort on the part of this government to deliver to its paymasters in the union movement a whole series of measures which have been on their wish list for a long time. It is about serving the interests of the union bosses in the union movement, it is poor policy and poor process and it will do serious economic damage. The Australian people have a right to expect that their government will act in the national interest and would deal with matters involving workplace relations as they deal with matters in any other area: having consideration to the interests of all Australians, and not to the interests of a narrow cabal of union bosses—notwithstanding the fact that it is those union bosses who have put most Labor parliamentarians into this place.

Regrettably, as this bill demonstrates, we have a government that is failing to live up to that standard. There can be no doubt in the light of this bill that we have in Australia today a government of the unions, by the unions and for the unions.

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