Stephen Jones (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Regional Development and Infrastructure) Share this | Hansard source

In December this year we will mark the 110th anniversary of the Conciliation and Arbitration Act. It was then, as it is now, probably one of the most controversial pieces of legislation that has ever been debated by the Commonwealth parliament. In fact, the 1904 act did not have an easy birth. It saw the collapse of three governments—the first Deakin government, the Watson government and the Reid government—before it was established in law. The government of Chris Watson, the then leader of the first Labor government in this country, that ushered through the Conciliation and Arbitration Act and appointed, shortly thereafter, the man who was at that time the Attorney-General of this country, Henry Bournes Higgins—he was also one of the finest High Court judges—as the President of the Commonwealth Court of Conciliation and Arbitration.

It is a shame that the member for Solomon is not here to hear this, because she said in her contribution that Labor is always on the wrong side of this debate. I beg to differ, and history will bear this out. Henry Bournes Higgins, in his memoirs, described the architecture of the Conciliation and Arbitration Act as a new province for law and order in this country. He said this with quite some experience because, as a barrister at equity before the Melbourne bar and a president, for many years, of the Court of Conciliation and Arbitration he saw many cases. He also had experience of the bitter industrial disputes which characterised employer and employee relations before the establishment of this court.

He said that the conciliation and arbitration legislation established a new province of law and order in this country. That judgement of Henry Bournes Higgins echoes down over the 110 years since the first piece of real, robust industrial legislation was passed through this Commonwealth parliament.

Over those 110 years three things have been pretty constant in this debate. The first thing that has been constant has been the dogged opposition of the Liberal and National parties and their progenitors to any form of regulation which gave workers a fair go and, at some point in time, restricted the power of employers to dictate the terms and conditions of employment. I will not say that the Liberal and National parties and their progenitors have not moved in their attitudes over those 110 years, but if there has been one constant it has been their dogged opposition to these forms of legislation. Whenever they get the opportunity they do their darndest to unwind the reforms that have been put in place by Labor governments. It has been so since the great friend of the Liberal Party, HR Nicholls, attempted to undo the work of the Court of Conciliation and Arbitration in the Harvester case. It has been so since Stanley Melbourne Bruce—the first Prime Minister of this country to lose not only an election but his own seat around the very issue of workers rights and industrial law—attempted to cancel the Commonwealth regulation in the industrial relations sphere. It has been so since the former Prime Minister John Winston Howard and the hapless member for Menzies, his workplace relations spokesperson—ably assisted by the member for North Sydney, who was brought in at the last moment to help with the task—tried to sell this dead cat to the Australian people. It has been the constant from the time of the fall of the first Liberal government to the fall of the last Liberal government. They have had it in their sights to unwind the reforms that have been put in place in workplace relations by the Labor government.

The second constant in those 110 years has been the clash between two founding principles. The first is adopted by those on the other side as the right to collective bargain versus the freedom of contract. In a nutshell this is the principle that lies at the heart of every single dispute within parliament and between employers and employees when it comes to the big disputes that have defined industrial relations history in this country.

We know—we see it in the legislation before the House today—that this notion of the freedom of contract is little more than a Trojan Horse for those who wish to determine, line by line, the terms and conditions of employment with little right to negotiate for their employees. This notion of the freedom of contract, as espoused by those radicals—many of them represented on the other side of the House in this debate today—is little more than a Trojan Horse to be able to dictate the terms and conditions of employment to an employee. We saw this great battle between the freedom to contract and the right to collective bargain played out in that tortuous instrument known as the Australian workplace agreement—I will have a bit more to say about that in a moment—and we see it again today in the amendments that are brought forward in the name of individual flexibility agreements.

The third constant in over 110 years of industrial regulation has been the absolute repudiation of the so-called commitment of those opposite to small government and red tape when it comes to the regulation of industrial relations. And I say that quite purposefully, because never has so much needless regulation been introduced in the name of freedom

Never have so many new constraints, new conditions and new requirements been introduced by a government that espouses the principles of deregulation and the reduction of red tape. Never has so much red tape been introduced in the name of deregulation. When you look at the three constants that have characterised the debates on these legislations for over 110 years, they have been: the constant opposition of the Liberal and National parties to regulation by this parliament; then, when they yield that ground, their absolute repudiation of any pretence that they stand for a reduction in regulation and red tape—they are willing to wrap every workplace and every industrial agreement in this country in as much red tape as they can land their hands on when it comes to workplace relations; and that constant conflict between the right to collective bargain versus the right to freedom of contract.

Never has there been so much wanton slaughter of the ordinary, everyday meaning of words in the cause of legislation than we have seen in this legislation before the House. It is competitive. It is even competitive with the performance of the former minister for workplace relations the Hon. Peter Reith in his famous 'more jobs, better pay' legislation that was designed to deliver the exact opposite. In this legislation we see the denial of access to workplace fall under the heading of 'right of entry', freedom of contract becomes the 'right to dictate' and good faith bargaining stands as the right to conduct a perfectly good negotiation with yourself or those who you have hand-picked to negotiate with if you are the employer seeking to establish a new greenfields agreement.

I turn to a few specific problems with the bill. I want to talk about the individual flexibility agreements because their history is instructive. They were borne of the demise of Australian workplace agreements but, indeed, reflect a concession—that is, within a collective instrument there may be a need to provide workers and employers with the opportunity for individual flexibility, provided that it does not undermine the rights of either. We knew that in introducing such a scheme that it would be important to introduce protections, so we did an analysis. The universities' research and the longitudinal studies that were conducted on AWAs found that over 80 per cent of Australian workplace agreements had provisions within them that reduced the overall conditions of employees. Over 80 per cent of them reduced the actual take-home pay, wages and conditions of employees who were subject to them.

The picture was even worse for women and people from a non-English-speaking background, which sheds a light on the reality of the capacity of individuals to bargain. Deputy Speaker, I wager that if you and I sat down to bargain we would probably have some bargaining power and, perhaps, the skills and professions that put us in a privileged place within the labour market. But most, if not many, are not so privileged and so protections are necessary. We saw ridiculous things; we saw penalty rates, overtime entitlements and monetary entitlements being traded for pizzas and videos. This is not right to any proper thinking person. The protections were put in there. The 'better off overall' test that these provisions seek to undermine was put in the legislation to ensure that these sorts of abuses could not occur. Individual flexibility arrangements, yes, but these sorts of abuses, definitely not.

In the name of individual flexibility we see some quite odd provisions within the agreement. They have removed those restrictions on the things that an individual flexibility agreement could cover, thereby permitting the trade-off of monetary for non-monetary—and without proper scrutiny perhaps pizzas and videos could once again be a feature of individual flexibility agreements. The idea that a statement of mind of the worker at the point in time of contracting is going to be used as some sort of protection really is risible, because anybody who turns their mind to the reality of these sorts of negotiations and the situations in which this is likely to arise will understand that this is a nonsense. Think about this: the example where an individual flexibility agreement has been arrived at by inducement, unfair inducement and perhaps coercion—that is, a worker has been asked to sign an agreement but we know that there has been an improper form of inducement or, indeed, the worker did not understand, through no fault of their own, what they were being asked to sign up to at the time. How can an additional statement that the worker is also asked to sign, at the very same point of time that they sign the offending agreement, be some sort of protection or defence against abuse? It is an absolute nonsense. It is almost as ridiculous as some of the statements that have been made by those opposite.

The problem at the core of this is: when they see rights and entitlements, they do not see protections for ordinary workers—they see union bosses. They do not see rights and protections and they do not see the organisations that protect those rights and protections; they see some bogey that they have dedicated their lives to destroying.

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