Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Hansard source

I thank the member for Wentworth both for bringing these issues forward to the House and also for the conversations that we've had, back and forth, leading up to the debate this morning.

First of all, I'll just go through a couple of the issues, if I may. The advice that we've been given is that in the structure of the act the arbitration clauses that are already there do presume conciliation before arbitration, and that has been the practice of the commission. So, in terms of the intention that's being sought with the amendment and the importance of conciliation being provided first, that is something that the government shares. It's been how the Fair Work Act has operated, and it is our expectation that it would continue to do so.

I want to explain the difference in view when it comes to whether, from the employer perspective, it should be opt-in only. It's very much a different policy view, which is appropriately ventilated here. If you start with single enterprise bargaining, the concept there—while it's rarely used—is that bargaining can be initiated by either side of the bargaining table. It can be initiated by the employer or it can be initiated by the workforce. If initiated by the workforce, it's called a majority support determination. They very rarely get up, but sometimes they do. The principle behind it is to say that we're trying to have a bargain of equals. That's what we're trying to have; we're trying to have a sensible conversation between the employer and the employees, and either side of that conversation can initiate it.

That's the same principle that we want to bring to multi-employer bargaining. One of the reasons that I brought forward the government amendment that was carried earlier with the voting provision change was to make sure that we did not end up with a situation where, at any individual workplace, neither the employer nor the workforce had voted in favour of being part of it. We are wanting to keep to that principle that is currently there in single enterprise bargaining. That is, quite simply, that either side of the negotiation can initiate it. To have a situation where it's opt-in only—the cooperative stream is opt-in only; there is one stream that is designed specifically for that purpose—but to not have a mechanism where the workforce can initiate a negotiation, but the employer can, takes away from the concept of what we're trying to get here. The strength of agreements is that they end up being able to deliver both the wage rises and the flexibility or productivity improvements because you've had a negotiation where both sides had a level of power in that conversation. It's for that reason that we want to maintain the majority support determination principle and it being possible for a workforce to say, 'We want to be part of this.'

Finally, with respect to the independent review, it gives me a chance to say publicly what I have said privately to the member for Wentworth and to many on the crossbench: I do believe the act should have an independent review, and I'm supportive of there being an independent review. What I don't want to do is have a situation where we adopt an independent review in good faith in this place and then go to the Senate and in Senate negotiations we end up with a different independent review, which would then look like bad faith in terms of what had been discussed here. I am very happy, as a result of it having been raised, to commit the government to the fact that there will be an independent review. The exact timing—whether it's a longer one with a halfway point of reporting, or exactly how it works—is something I would rather do in a single negotiation when it gets to the other place. I suspect the relationships between the crossbench here and the crossbench there mean that we should be able to get to a sensible position.

So the government will be opposing the amendment, for the reasons I explained about the opt-in principle, but I thought it was important just to make clear our view of the conciliation provisions and also the undertaking on an independent review.

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