Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I am indeed. The minister wants to stay here. He is acting on behalf of a very good friend of his, Senator Cash. He wants to hear all of the arguments. I am sure she can actually, in some way, provide support to him in his portfolio.

The fact is it is an unreasonable provision to allow only one side of the bargaining table to have unilateral capacity to determine the outcome of an agreement subject to one ill-defined term—yet to be tested either in the commission or the courts—'the prevailing industry standard'.

It would be reprehensible and, indeed, it would be against the principles that the Labor Party hold when it comes to industrial relations to allow one party to make those decisions. We would not allow that on either side of the bargaining table and yet we have, of course, the Abbott-Turnbull government proposing such a reform and such a change. But as I made clear, I do understand and I have understood some of the concerns that the industry has raised. In keeping with those concerns, we did speak with the government and for a longer period with the crossbenchers to find some alternative position. I want to thank the senators who I was able to engage with. Whilst, ultimately, they supported the government in this regard, I believe I got a good hearing from the senators that I did speak with: Senator Madigan, Senator Muir and Senator Lazarus. I think it was unfortunate that they did not accede to our position. I know that Senator Lambie did not support the government's position but I wanted to speak to her. I was disappointed—I get on very well with Senator Xenophon, I did when I was in government as a minister—but it was unfortunate that we did not get an opportunity speak, because he quite often listens to reason.

The ideas that we were putting forward were reasonable and fair, unlike the government's amendments that are currently before this place. They were fair because they were designed to balance the interests of prospective workers and employers in making greenfield agreements. Remember this, when we are talking about greenfield agreements, there are no existing employees in a position to put their hand up and say, 'I'm not happy with that.' So it is entrusted to organisations of employers to represent their future interests upon being employed.

The opposition, originally, resisted the provisions, but we then sought amendments to retain the government's proposal to apply good faith bargaining to greenfield agreements, so we did I think converge. I do not know, maybe we started this new politics, because I was talking about this even before Malcolm knifed Tony. They allow for arbitration as a last resort using the Fair Act Work infrastructure of workplace determinations—in other words, we understood there needed to be a defined period, so you could not have the matter go on indefinitely. When I spoke with the large companies and others, their bigger concern was this thing could go on indefinitely. That would, of course, lead to uncertainty which would quite possibly make it more difficult to attract investment. What we said is, 'Yes, we're happy to find a time frame too, but'—and this is a very significant difference between Labor and the government—'if there were to be a resolution when the two parties could not resolve the matter, this would allow for arbitration as a last resort by the Fair Work Commission.'

The amendments also encourage bargaining and the making of agreements. The opposition is proposing to keep a time limit on reaching agreement through a notified negotiation period proposed by the government, but extending it from three months to, I think, a more reasonable time frame of six months. We do not think that is unduly long. Indeed, the six months was an idea that emanated from the crossbenchers. They proposed six months to the government.

The Fair Work conciliation powers would also be strengthened in order to ensure that we could have a better role for the Fair Work Commission to play in discussions before any ratification of a greenfield agreement. We did that by enabling the Fair Work Commission—we would have if our amendments had been accepted—to conciliate on their own motion if it is in the public interest to do so. The Fair Work Commission can be proactive (Extension of time granted) and play a role before the matter is even resolved by way of arbitration. I think it is also fair to say we would like to see the parties resolve these matters themselves. We invented collective bargaining, something the other side do not like. We support the parties taking the responsibility in determining matters wherever possible but we understand there are occasions in which the Fair Work Commission, the independent umpire, can play a very positive role and we believe that is what would have happened here if our amendments had been accepted. Greenfield agreements will be longer than greenfield workplace determinations, again, to encourage agreement making rather than arbitration—so, again, providing an inbuilt incentive for parties to resolve their differences and make agreement without recourse to a third party.

Finally, bargaining will be encouraged by ensuring that the party who wishes to access arbitration has done their best to reach agreement. The opposition's amendments also provide for the content of a greenfields workplace determination to be decided consistent with the existing laws around workplace determinations. A greenfield workplace determination will, amongst other things, include: terms that have been agreed to by the parties; terms that deal with the matters in dispute; and model terms in relation to flexibility, consultation and dispute resolution.

We believe sincerely that we had put what was a far more reasonable, far more equitable proposition to amend the government's proposed legislation in order to ensure that we could maintain some fairness in the system. We relinquished the position of allowing for this indefinite problem that was associated with some greenfield agreement negotiations. We had a time frame that could be resolved by the Fair Work Commission if required. I should have added too that the greenfields workplace determination must still comply with the better off overall test, and the National Employment Standards, and the Fair Work Commission is required to consider the behaviour of the parties in trying to reach agreement in deciding whether to make a determination in respect of the content of the determination.

We believe that it would have been a far better outcome if the amendments that were being proposed by the opposition in the Senate were accepted in relation to greenfields. We do not support the contention of the minister that the proposal with respect to greenfields is a reflection of what was put to the electorate before the election. We also do not believe it is fair to characterise the current amendments as outlined by the government and supported by the government to be a reflection of the Fair Work review. We think that is not accurate and we would say, therefore, the government does not have the mandate it suggests it has to make changes here.

I think far more fundamentally, even above and beyond the fact that it is not something the government had an imprimatur to do, as they did not make this specific commitment in this way prior to the election, it is just fundamentally unfair that you can have negotiations between two parties and both parties know when they enter those negotiations that one side gets to determine all matters with only one condition, which is the prevailing industry standard. How does that lend itself to good faith bargaining? How can you possibly have good faith bargaining when one side can just sit on its hands and not genuinely seek to find solutions? It is a pretty good position to be in if you are the employer but if you are the organisation representing prospective workers, it is a very weakened position. It is therefore not in keeping with what collective bargaining is about, which is allowing for all the parties to genuinely be in a position on a level playing field negotiating outcomes not only in their mutual interests but also of course in the interests of the people that they represent at the table. For that reason, we have had some significant problems with that.

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