Michael Keenan (Stirling, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to discuss the Fair Work Bill 2008. This bill was introduced last week by the Deputy Prime Minister. I see that the government have devoted the whole week to this debate, and I expect that they are going to engage in extended mutual backslapping and self-congratulation. But, whilst the House will spend the week debating workplace relations, it is only this side of the House that will actually address the central issue in this portfolio—that of job security.

I fully expect government members to echo the Deputy Prime Minister in their approach to this bill and in their approach to this policy area—an obsession with workplace regulation and the role of unions within the system and a callous indifference to Australians who have recently become unemployed or who will be made unemployed over the next two years. Just as Australians understand that the Labor Party stands for deficits, they also understand that Labor stands for unemployment. The Deputy Prime Minister risks becoming the empress of unemployment.

Twelve months into the Rudd-Swan government, we see the Labor Party reverting to type. After inheriting the best economic situation of any incoming government in Australia’s history, they have comprehensively begun to squander this legacy. We see it in the discussions this week about the deficit. They have managed to take a $20 billion surplus and, within 12 months, they have begun softening up the Australian people for further budget deficits.

And so it is on the employment front. The government has inherited the best situation of any incoming government in Australia in the past three decades—a situation of practically full employment. When the government changed in 1996, when the legacy of the Keating government was one of mass unemployment, who would have thought that by 2007 Australia would find itself in that situation? I want to take a few moments to remind the House of the previous government’s legacy on jobs, participation and employment, because it is the best legacy of any Australian government in the past three decades. I want to go into some detail about this legacy, because it is now the Rudd government’s to squander. Between March 1996 and November 2007, more than 2.2 million jobs were created. Of these, over 1.1 million were full time and almost 950,000 were part time. As of November 2007, 10.6 million Australians were in work—a record high. Over 7.6 million are now in full-time employment and three million are in part-time employment. The unemployment rate in October 2007 was an astonishing 4.3 per cent, which was a 33-year low. In December 2002, under the Keating government, the unemployment rate in Australia peaked at 10.9 per cent, which left one million Australians out of work.

The number of long-term unemployed in August 2007 was 66,700. One of the proudest boasts of the Howard government is that it slashed long-term unemployment by two-thirds—the number of very long term unemployed stood at 33,500 in August 2007. The number has fallen sharply, by 138,100, since its peak in November 1993. As I said, the long-term unemployed are of course the most difficult people to get into work. Whilst these 2.2 million jobs were being created there was an increase of almost 21 per cent in real wages. This compares to the 1.8 per cent decline in real wages under the Keating government. In real terms, average equivalised disposable household income was 10 per cent higher in 2005 than it was two years previously and 34 per cent higher than when the Howard government came into office.

At the nadir of unemployment, during the Keating government, in February 1991 the retrenchment rate was 6.5 per cent. It fell to 4.6 per cent in February 1996, when the Howard government took over. Since that time, the retrenchment rate has continued to decline. It stood at 2.2 per cent in the year to February 2006. Consequently, retrenchments were 59 per cent lower under the Howard government than they were under the Keating government in 1991. During this time, whilst these jobs were being created and whilst retrenchments were declining, the participation rate reached a record high of 65.2 per cent under the Howard government, compared to a rate of 63.5 per cent when the Howard government came to office in 1996. The participation rate of Australian youth—that is, people aged between 15 and 24—ranks second highest amongst OECD countries. The female participation rate is 57.6 per cent, well above the 53.7 per cent rate in March 2006, when the government changed. The number of working days lost to industrial action has also markedly declined. The number of working days lost per 1,000 employees has fallen from a high of approximately 105 in December 1992, when Labor was in government, to 80, the lowest quarterly rate ever recorded by the ABS.

I want to comprehensively highlight this legacy, because it is a legacy the new government can either protect or destroy. The Howard government has an unparalleled economic legacy, and its stunning success in creating jobs and lifting the standard of living through real wage increases is perhaps the most impressive aspect of this economic legacy. Yet we are now seeing the new government beginning to reverse all of these gains, and the opposition is deeply concerned that the Fair Work Bill will accelerate this slide. We have been left in a position where we have no choice but to accept government assurances that they have done their basic due diligence on this piece of legislation. No information has been made public on the likely effects of these changes on employment, industrial action, productivity or any other economic indicator. It is unclear that the government have undertaken any analysis, as you would expect them to do on such a major policy change in the way our labour market operates.

Extraordinarily, the government have exempted themselves from their own requirement to provide a regulatory impact statement. The Minister for Finance and Deregulation outlined these requirements in the House just six months ago, but the government have completely ignored them in framing this piece of legislation. When the Minister for Employment and Workplace Relations has been asked in the media about the effects of her industrial relations changes, she has refused to answer questions about what advice has been sought. Her response is along the lines of, ‘We understand the effects of our policies,’ yet it is not clear whether this understanding is based on rigorous analysis or just a hunch.

There is an emerging government pattern in all of this, and we saw it again over the weekend with the Council of Australian Governments announcements. They spend money and they quote a figure as to how many jobs that spending is going to create without providing any justifying information whatsoever. Take the case of the COAG announcements over the weekend. In the case of those COAG announcements, they said that extra spending was going to create 133,000 jobs. Take the economic stimulus package, with $10.4 billion spent: there was the announcement that accompanied that funding, saying that an extra 75,000 jobs would be created. Again there was absolutely not a shred of credible analysis to back this up. It does not automatically follow that extra government spending will lead to job creation. Poor labour market regulation can make any extra spending redundant. But of course the opposition has been left with no choice but to take the government on trust that these laws will not contribute to unemployment or have wider negative impacts on the economy.

It is clear from the legislation that, far from implementing the ALP’s workplace relations policy as announced by the ALP in the lead-up to last year’s election, this bill goes way outside of that policy on several very important fronts. In some cases, such as compulsory arbitration and pattern bargaining, the minister has completely reversed what Labor said the new government would do. These backflips are without a doubt the worst aspects of this bill. I want to highlight some of the areas where the minister has gone against the commitments that she made prior to the last election and indeed the commitments that she continued to make right up to just before this legislation was introduced. Take the issue of compulsory arbitration. Right from the outset, when the Labor Party announced their policy last year, compulsory arbitration was ruled out. On 30 May 2007, in a speech to the National Press Club, the minister said it was completely untrue that Labor’s new body, Fair Work Australia, would re-empower union bosses and introduce both compulsory arbitration and centralised wage fixing. She went on to say:

Under Labor’s policy there is no automatic arbitration of collective agreements. Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

Later on in that year, in September, the minister was asked a direct question: would compulsory arbitration be part of the Labor system? The minister responded:

As we’ve said in our policy … there are a very limited number of circumstances where you need the industrial umpire to step in and resolve a dispute.

She went on to say:

… in the ordinary course people who are collectively bargaining at their enterprise level, all of that bargaining will happen at the enterprise level, they will either strike an agreement or not strike an agreement.

In other words, she was saying that it would be left up to the parties to make a judgment. Later on, again in a speech to the National Press Club, on 17 September 2008, the minister said very explicitly:

Compulsory arbitration will not be a feature of good faith bargaining.

This breach of faith as to the policy that was announced and the commitments that were consistently made later on in the year is perhaps the most outrageous of the government’s broken promises evident in this bill and it was done in the most blatant way to appease the union movement. Compulsory arbitration was ruled out in ALP policy commitments made prior to the last election, and the Deputy Prime Minister consistently ruled it out right up until 17 September this year. Then, just before this policy was announced, the minister backflipped in a speech that she made in Melbourne a couple of weeks ago. We now see a proposed system in which bargaining and negotiation have the potential to end with an adversarial and arbitrated outcome.

This is only one of several significant policy backflips that the minister has made. On union rights of entry, a fundamental part of the industrial relations system, the minister and the Prime Minister were at pains to point out, prior to the last election, the following. This is what they said in a joint press release:

Federal Labor will maintain the existing right of entry provisions. Right of entry rules remain.

Later on, at a press conference on the day of the press release, the minister confirmed that, saying:

We will make sure that current right of entry provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

Again, after the election, the minister confirmed this was still ALP policy. In a speech to Master Builders Australia on 28 May this year, she promised ‘to retain the current right of entry framework’ and went on to say that this promise ‘will be kept’.

What we find now is that, whilst cosmetically the right of entry provisions are being retained, once you look at the detail you see this is a complete misnomer. As with most of the minister’s promises, you need to actually look at the detail. When you do, it inevitably exposes deceit. When you read the detail of the right of entry provisions contained within this legislation, you see the actual effect is to give the unions the best organising conditions they have enjoyed for decades, a point apparently confirmed by the minister in the ALP caucus when she was discussing this bill. Unions can now enter a workplace that uses non-union collective agreements, whereas before they could not. One or several unions can now enter workplaces where they use an agreement made with another union, where before they could not. Unions can now access non-union-member records, where before they could not. This is of course quite extraordinary. Unions can walk into any workplace, even when they have no members in that workplace, where before they could not. Restrictions on where unions can hold meetings have been loosened. Unions can now bargain with an employer about right of entry, where before they could not. Unions are now default bargaining agents, where before they were not. Unions are likely to be automatic parties to most new enterprise agreements, where before, under the old system, they were not. Unions get an automatic and privileged seat at the bargaining table, with disproportionate powers, where before they did not have these. Restrictions on who can go to the industrial umpire, Fair Work Australia, favour those represented by a union. So how can the government genuinely assert that this bill retains the previous right of entry provisions when, in looking at its detail, you see it favours paying off Labor’s debt to the union movement?

There are only a handful of measures left in this bill that will allow a workplace to keep unions out where they are not wanted. The same has been done with arbitration and right of entry. The same has been done with pattern bargaining. Previously in Labor’s policy and subsequently throughout this year, the minister ruled out that this legislation would contain a return to pattern bargaining. Indeed, the minister was asked during a doorstop on 1 May 2007, ‘Is pattern bargaining going to be a reality under your policy?’ The minister responded:

That is completely untrue. Pattern bargaining, in the sense of having industry-wide action, is unlawful under Labor’s Forward with Fairness plans.

She reconfirmed it on 30 May 2007:

Pattern bargaining is a term used to describe bargaining across the whole industry. That’s not what Labor’s policy is about.

Later on in the same year, she made a speech to CEDA and said:

The Minister and the Government

of course, this goes back to the previous government—

will make all sorts of silly claims about Labor’s system. That it’s about centralised wage fixing and arbitration—it’s not. That it allows for pattern bargaining—it doesn’t.

She reconfirmed on The Today Show prior to the last election. She issued press releases saying that Labor will make pattern bargaining impossible. This has been reconfirmed by other ministers. The finance minister confirmed to The 7.30 Report earlier on this year:

We do not accept that pattern bargaining is legitimate.

Yet, in this legislation, we see a significant U-turn on pattern bargaining. Again, it has been disguised and hidden within the detail in the same way as union right of entry. You always need to look at what this minister does as opposed to what she says.

Special bargaining provisions contained within this bill allow for pattern bargaining by another name and will have the dangerous effect of creating artificial wage outcomes and reducing the relevance of the safety net. This will damage small businesses and those workplaces that rely on the safety net as a source of employment conditions, and it will force them into bargaining against their will. The end result of this is that it costs jobs, it costs time and it reduces genuine productivity. A return to pattern bargaining by stealth is indeed a dire outcome for Australian workplaces, particularly as Labor presides over the lowest level of business conditions in 14 years.

Another free kick that is gained by the union movement within this legislation is that the unions are allowed to demand bargaining fees from non-union members. The rights of non-union members to have their own voice in the bargaining process are now vastly limited. In some circumstances, they may be forced to pay for the right to not be a union member. How this is genuinely moving forward and how this is fair is anybody’s guess.

On the transmission of business rules, a very important part of workplace relations on which the government remained mute prior to the last election, we find they have slipped in another provision that is anti jobs and anti growth. Employers who now buy a business with employees will also be forced to buy the agreement that covers those employees. This is a change from the previous system. There will be no option to create a new or more appropriate agreement, regardless of the state of that business. So when you buy an agreement with inefficient or uncompetitive employment practices, you are completely stuck with it. Of course, this may compel some potential purchasers not to take on the employees who will pose an impediment to business sales and acquisition. Basically, you will not be able to sell a business that has these uncompetitive arrangements. This business will ultimately just have to go to the wall. This legislation will not give you the option that was available under the previous legislation where a new owner could come in and restructure and make the company competitive again.

As we have announced in the past, we will not oppose the passage of this bill through the House but we do reserve the right to make amendments in the Senate after the Senate committee has conducted a full inquiry. We will make amendments where we believe that we can improve this bill. We are particularly concerned about some of the areas I highlighted, where the government has gone well outside the mandate that was granted to them by the Australian people at the last election. We urge all parties with an interest in this legislation to make a submission to the Senate inquiry.

We have been required to make our decision not to oppose this legislation in the House without the depth of information that you would expect when you come to judge a reform of this nature. Of course, it is going to be very easy to judge the effects of this legislation over time. You can do it very simply by looking at things like the unemployment rate. Has the unemployment rate fallen or has it risen? How many Australians are now in work? Have the drivers of growth—small and large businesses—been given the confidence and the tools they need to employ people with certainty? Ultimately, of course, they are the drivers of employment growth. Is the Australian economy losing more or fewer days to industrial action? When Australians leave school or university, do they have a reasonable prospect of finding a job? The employment portfolio is one that lends itself to reasonably simple judgments about how the minister is performing. There are simple and obvious keys to performance, and the opposition will be holding the minister and the government to account for their performance in these key areas.

The government have, I think, rather inexplicably devoted a whole week of this House’s time to their proposals to change labour market regulation, yet they have not been frank with the Australian people about what these changes might mean for them. Rather than engage in a week-long party of self-congratulation, they need to start to focus on Australians who are about to lose their jobs. Their approach to workplace relations so far has been typical of the Rudd-Swan government: all spin and no substance. Because they now realise they have a problem with unemployment—that unemployment is rising and will continue to rise—suddenly we see the government start to relate all their decisions back to job creation. Of course, a few months ago, everything they did related back to controlling inflation, although they have now dropped that rhetoric and they have moved on to saying that everything they do relates back to job creation. I am assuming this is in line with the Prime Minister’s self-declared war on unemployment. This is a reminder that the government have a political strategy but no economic strategy. The opposition’s position is that we take the government on trust that the measures we are discussing here today are not going to hurt the Australian economy. We will be examining the evidence presented to the Senate inquiry into the bill, and we reserve our right to make amendments to improve the way this legislation might function.

These are the real and relevant questions that the government needs to answer: how can the government guarantee that this bill will not cost jobs and will not lead to increased levels of disputation in Australian workplaces? How can the government guarantee that this bill will actually improve productivity and employment growth? And, most relevantly, can this government keep control of the union bosses now that this bill has given them a new privileged position and disproportionate powers and access to Australian workplaces?

The worst possible employment outcome for any single Australian is that they cannot find a job or that they will lose the job that they have. Yet we are discussing a major change to the workplace relations legislation without one skerrick of analysis as to whether this bill will make that outcome more or less likely for average Australians. The impressive Howard legacy that I outlined at the beginning of my speech is at stake when it comes to changing our workplace relations system. From this moment forward, the government must take absolute responsibility for the changes that it makes, and it must take absolute responsibility for any subsequent rises in unemployment.

Yvette D'Ath (Petrie, Australian Labor Party) Share this | Link to this | Hansard source

I rise to proudly support the Fair Work Bill 2008. The significance of this bill should not be underestimated by anyone in this country and certainly not by those on the other side of this House. For far too long this country has had industrial relations laws that are punitive. The previous government had an obsession with driving down workers’ wages and conditions, removing the basic freedom to belong to a union and ensuring inequality in bargaining.

We have heard from the member for Stirling today. In speaking on this bill, he has accused Labor of a breach of faith and of being deceitful in not analysing the impact of this bill and not being upfront about its effects. There is no greater height of hypocrisy than that statement made by the member for Stirling when we reflect on the fact that the Howard government went to the election in 2004 with no mention of Work Choices; nor did they provide any information at all to the community about all of the legislation that they tried to push through this parliament prior to 2004 and its effects. They just waited and, upon getting the balance of power in both the House and the Senate, the Howard government took no time at all in setting about destroying 100 years of positive industrial relations laws—laws that had developed over the past century from the struggles of hundreds of thousands of workers across Australia who fought, not just in the workplace but in the courtrooms, to establish fair and balanced rights and working conditions.

When it came to the previous government there was not a single thought given to those struggles and to the legitimate consideration given through lengthy test cases and legal arguments over many years to establish the laws and legal authorities that evolved. This was a government so obsessed with their ideology and their absolute dislike of unions—which, ironically, never extended to employer unions—that they would do anything to achieve this aim. It appears that, in the eyes of the opposition, it is okay to be a member of an employer union but not of an employee union.

This was a government that treated the Australian people with contempt. It ran ads during the election campaign—and we have heard it again today—trying to portray union officials as people that should be feared, when in fact what workers want and should have a right to is simple equality. If an employer is able to have their employer union official, a consultant, a solicitor or a barrister representing their business at the workplace during a meeting with an employee, why shouldn’t that employee equally have the right to have their union official representing them?

The Howard government and the members now in the opposition treated the Australian people like fools during the election in 2007. The then member for Petrie even attempted to slur my name with comments and letters reminding people that I am one of ‘those union officials’ and consequently I should be feared. The Australian people saw through this facade for what it was: a desperate attempt to hold onto government so that they could not only hold on to their extreme industrial relations laws through Work Choices but have the opportunity to take them much further. We heard in 2006 that the person who wanted to be Prime Minister but was never quite up to the task of trying to take the job, the member for Higgins, wanted to take the unfair dismissal laws much further. If it was not offensive enough to have the majority of workers across the country excluded from any independent recourse from unfair dismissal, the member for Higgins, in speaking on the limit of 100 or fewer employees, stated that this was no magic number and that in future he would like to see all businesses excluded.

The Australian public should not assume that because John Howard is gone—and the member for Higgins should be—the remaining opposition are now fair work supporters. This is a party that, although devoid of policy and sincerity, is steeped in an underlying belief that workers should have to fend for themselves in dealing with their employer and negotiating their wages and conditions. Even before Work Choices, when AWAs were required to meet a no disadvantage test which was enforced by the Office of the Employment Advocate, that office failed on many occasions to ensure the test was met. As a consequence of the introduction of Work Choices, many workers had AWAs thrust upon them with no safety net in place at all. These agreements were able to override all of the workers’ existing conditions of employment.

This House has heard many examples from the Deputy Prime Minister and Minister for Employment and Workplace Relations, Julia Gillard, over the past 12 months about the significant disadvantage that workers have suffered as a consequence of inferior AWAs lawfully allowed under those extreme laws. We had unfair dismissal rights restricted so much that the majority of businesses across the country could dismiss workers without reason. We had a bargaining system where no assistance could be sought from an independent body to resolve issues unless the employer and employee agreed—which, not surprisingly, many employers did not.

This new Fair Work Bill stands in stark contrast to the Work Choices legislation and the laws that came before it. This is not just a bill to deliver fair and just industrial relations laws in Australia; it is a bill for the future. It delivers fair rights and protections at the same time as placing reasonable obligations on employers, workers and unions. This bill will assist in increasing productivity growth through job security and ensuring that workers are valued for the work that they do. This bill also provides rights for employers and the flexibility needed for a strong, robust economy where businesses are required to be competitive not just nationally but globally.

For too long, Australia has had industrial relations laws federally that undermine the intent of Australia’s forefathers: a strong and fair democratic system and that our industrial relations laws be a positive piece of legislation that provides positive rights and obligations on parties. Despite the complexities of the Work Choices laws, there is one simple example of how far our country had strayed from our ideal of a fair and just society. In 1916 Queensland saw its first unfair dismissal case. The gentleman seeking review was a sewage transport worker with Maryborough City Council. Through his union at the time he sought to have his dismissal reviewed by the then Fair Treatment Tribunal. His case was upheld. In 2006, under Work Choices, a worker in the same position, along with many other workers across the country, would not have had such a right. This means that 90 years on from the first case in Queensland, workers in Australia had less rights than in 1916. Australia should be ashamed of this fact. Australians across this country understood this in 2007 and wanted to correct this blight on our reputation and the attack on their basic rights. That a government would put its ideology before basic rights in the workplace is a sad indictment on the Howard government. The legacy that it left was not one to be proud of, despite the member for Stirling’s comments today.

Even before Work Choices was introduced, the previous government sought to systematically undermine the rights of workers in this country through the introduction of the Workplace Relations Act 1996 and its ongoing attempts on no less than 12 occasions over the past decade to continually erode any element of fairness. It is important that people across Australia were informed of what their government was doing to them and the long-term affects those decisions would have, not just on them, but also on their children and their grandchildren. That is why the Your Rights at Work campaign was such an important initiative. I would like to acknowledge and thank the union movement for their effort to lift the awareness of the effects of Work Choices on Australian workers and to see these laws removed from the Australian landscape forever. I know that this campaign was supported not just by unions but also by the community as a whole, by businesses, small and large, and by many other organisations across Australia.

Many employers spoke to me about the fact that they believed Work Choices had gone too far. On 24 November 2007, the Australian people ensured that the Howard government and all of its members and candidates who supported Work Choices got the message loud and clear, although I do query, having listened to the member for Stirling this morning, whether they heard that message at all. Once again, we hear the member for Stirling standing here today in this chamber saying that they are forced to agree to the Fair Work Bill by the government. No acknowledgement that it was the Australian people who came out and said, ‘We do not want these laws.’ No acknowledgement that workers across this country did not want these laws. Not one reference to Australian workers in the speech by the member for Stirling or an acknowledgement that these workers were not satisfied with the extreme industrial relations laws of the Howard government.

The reason this bill is right for workers, businesses and the economy as a whole is spelt out in its terms. The principle objects of the bill require the legislation to be applied in a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians. The bill guarantees a safety net of fair, relevant and enforceable minimum terms and conditions for Australian workers that can no longer be undermined by the making of statutory individual employment agreements of any kind. The bill ensures freedom of association and recognises that employees have the right to be represented at work by a union. These objectives will be applied by a new, independent body established to enforce the positive rights and obligations that are prescribed therein in a fair and just manner. The new body will be known as Fair Work Australia.

This bill will provide the right for an independent body to review a decision of an employer to terminate an employee’s employment where that employee genuinely believes that the dismissal has been harsh and unreasonable. Of course, under this bill, employers are also given adequate time to ensure that any new employee is suited to the work required and to the business through a probationary period of 12 months for small business and six months for all other businesses. This will give employers a reasonable period of time to train and assess a person’s performance and ability to perform the work before any right to unfair dismissal can arise.

On too many occasions since the introduction of Work Choices did I have to hear direct accounts by individuals of their unfair dismissals, only to feel their frustration and despair knowing that these people have no protections from that action. I remember a solicitor phoning me in mid-2006 requesting advice, as I was the senior industrial advocate of a union at the time. This particular solicitor was not familiar with this area of law. This solicitor told me about his client who had just been dismissed after 16 years of employment. This employee had never been questioned or disciplined about conduct or performance. The only change was that a new supervisor had recently taken over and did not seem to take a liking to the long-term employee. The solicitor asked me what action was available to the employee. After clarifying that the employer was covered by Work Choices and the size of the workforce was approximately 60 employees, I advised the solicitor his client had no rights. This solicitor then proceeded to run a logical argument that the employee had been given no reasons for the dismissal and, upon the employee asking why he had been dismissed, was simply told by the employer they did not have to give a reason. As such, no procedural fairness was provided to this employee at all. I once again told the solicitor his client had no rights. This solicitor was absolutely amazed that this was in fact the current law. This disbelief was unfortunately felt by many employees dismissed without reason.

This bill, the Fair Work Bill, will ensure that the right to fair treatment in relation to the termination of employment will be protected at law. The process has also been improved, with both parties having access to a simple, streamlined, unfair dismissal claim process through Fair Work Australia. In addition, this bill provides for a fair and reasonable safety net of wages and employment conditions that cannot be stripped away. The safety net will be outlined in the National Employment Standards and through modern awards. The Australian public wanted to ensure that any new system had at its core basic wages and conditions that could not, under any circumstances, be reduced. Julia Gillard and the Rudd Labor government have delivered on this promise. All future enterprise agreements must be negotiated with the explicit requirement that the terms and conditions leave the employee better off overall than they would have been compared to their respective awards. The importance of ensuring such a test exists was never understood by the Howard government, and they stripped away that protection. Even in the dying days of the Howard government, when they sought to throw together a safety net test, they never truly intended to provide protection to retain the important rights of workers. It was simply a smokescreen to try and bluff the Australian public into thinking that they actually now cared. Of course, we all know that that was not the case.

This Fair Work Bill will deliver where the Howard government stripped away. The new bargaining system will ensure that businesses and workers can have the flexibility needed to keep competitive and deal with the pressures on working families. It will ensure that assistance can be given when it is needed, without unnecessarily interfering with the bargaining process or the rights of parties to negotiate their own terms of the agreement. Under the general protections prescribed in the bill, workers will have the right not only to belong to a union but to be represented. Workers will be able to meet to discuss workplace issues with their union official without their employer intimidating them.

I congratulate the Minister for Employment and Workplace Relations, Julia Gillard, and all of the ministerial staff and departmental officers who worked tirelessly to see this bill introduced 12 months on from the Rudd government coming into office. Although it has been difficult for workers to wait for the new laws to be introduced and for Work Choices to finally be condemned to the dustbin, it was extremely important that the government got this right—that is, that this bill is workable and reasonable and that it will provide a strong industrial relations system for the nation into the future. This bill does that and more. I am proud to be an elected member of this parliament and to be part of the Rudd Labor government, which is delivering on its promises to the Australian people. I commend this bill to the House.

Andrew Southcott (Boothby, Liberal Party, Shadow Minister for Employment Participation, Training and Sport) Share this | Link to this | Hansard source

Whatever people think about the Howard government, one thing that no-one disputes is that jobs and the creation of jobs were at the centre of the Howard government’s mission. When the Howard government came to office in March 1996, unemployment stood at over eight per cent. When it left, unemployment was down to 4.3 per cent and it fell in February this year to below four per cent. These were the lowest unemployment rates we had seen since November 1974. It had taken 33 years for unemployment rates to return to the levels Australia enjoyed before stagflation and the Whitlam government ripped a hole in the Australian economy.

I am very proud of the Howard government’s record on jobs. There were 2.2 million jobs created; 1.2 million of those were full time. Unemployment fell from 8.1 per cent to 4.3 per cent. The teenage unemployment rate by 2008 was half what it was in 1992. During this time, there was a 20.8 per cent increase in real wages compared with the performance of the previous Hawke-Keating government, where there was actually a fall in real wages. The participation rate was over 65 per cent when the Howard government left office, the highest it had ever been. The female participation rate had increased during that period to again be the highest it had ever been. Every year we used to hear from the Australian Bureau of Statistics that industrial disputes were the lowest since statistics were first collected, in 1913. They were the lowest on record.

How pleased we in this parliament would all be if the Rudd government, when it finished its time in office, had anything like that track record. Sadly, on the evidence before us, it seems that we will be looking at a very different picture. The most recent forecast from the OECD is that there will be 200,000 more Australians out of work by 2010. We have any number of forecasts—from the Treasury, the Reserve Bank and a whole range of economic analysts—that unemployment will rise. Those forecasts put the unemployment rate by 2010 at between 5.75 per cent and 8½ per cent. Ultimately, what the Rudd government will be judged on is its performance in the area of jobs. It will be judged on its performance in the area of job creation and it will be judged on its performance in keeping Australians in jobs.

The opposition accepts that Labor has a mandate for industrial relations reform. To anyone who has not got the memo, Work Choices is dead. Campaigning in my own seat about 18 months ago, I had a conversation with a bloke about my age. He said, ‘Look, I think you’ve done a good job but you’ve gone too far on Work Choices.’ That view would have been reflected by people who voted for the Howard government in 2004 and then voted for Kevin Rudd in 2007. The opposition’s message is: ‘We want you back. We want you back and we want your support.’ We do recognise that Labor has a mandate for industrial relations reform.

The important thing in workplace relations is that we have a model which is adaptable and which suits the times, to help our businesses compete in the global arena. We need to have a workplace relations framework which fosters a mutually beneficial employer-employee relationship and ensures that flexibility is afforded to both employee and employer. It is absolutely critical that we safeguard the flexibility provisions from previous industrial relations reforms. This is absolutely critical to creating jobs, to providing job security and to ensuring that Australia is able to remain competitive in the future.

Over the last 20 years there have been a number of reforms to industrial relations, and all of these reforms have been premised on economic necessity. The reforms of 1988, 1993, 1996 and 2005 were all premised on the importance of providing flexibility, but also on the fact that there would be an economic dividend there. The dividend would be an increase in productivity, improved employment growth and reduced unemployment. It was one of the weaknesses. To give credit where credit is due, it was recognised by the Labor Party, as it was recognised by the Liberal and National parties, that the first steps towards enterprise bargaining were begun in 1988. It was a recognition that, while the Accord had kept wages down and had some impact on providing downward pressure on inflation, it had not led to improvements in productivity. So the feeling was that we needed a more decentralised system and that there would be an economic dividend from this.

The thing that I find surprising in this legislation is that there seems to be a deafening silence about what the economic dividend from this legislation would be. I would love to know what the Treasury analysis is of this legislation—whether it will increase, decrease or keep employment the same; whether employment growth will increase, decrease or remain the same; whether labour productivity will increase, decrease or remain the same. These are very important things that we, the parliament, should know and that the Australian people should know as well. What is the Treasury analysis of this legislation and what will be its impact? Does it improve our economic performance, does it detract from our economic performance or does it make no difference? There is complete silence on this, and as a member of the opposition I would be very interested in having a little bit more information about the economic analysis of these laws, because what we need in industrial relations is to have a framework that will stimulate productivity, stimulate economic growth and encourage and foster the creation of jobs.

As I said before, the Howard government had a strong record on jobs. Labor’s record on jobs is not a happy one. The Hawke-Keating period and the Whitlam period were not happy periods in terms of job creation and in terms of the unemployment legacy and the human cost that comes with that. We are now seeing evidence that we may be returning to a period of higher unemployment, after having had a period of falling unemployment and lower unemployment. The latest OECD economic outlook has forecast that 200,000 Australians will lose their jobs by 2010. This is why it is absolutely critical that the government has a comprehensive plan to do all it can to provide job security and certainty to working Australians. We are seeing large lay-offs from well-known Australian companies on a daily basis. Since 25 November last year there have been more than 20,000 workers who have lost their jobs in mass redundancies. So in speaking on this bill I want to say that job security is paramount. We need also to ensure that labour market flexibility is maintained. We cannot afford to see a return to pattern bargaining. We cannot afford to see a return to widespread industrial action. Already the signs are disturbing. On industrial disputations, the number of disputes has increased eightfold since the Rudd government came to power.

Labor has not announced a comprehensive plan to provide job security for Australian workers. What we need to know is that this reform and this bill do not have a detrimental effect or impact on reinvigorating the economy. To date we have had the tax changes which were based on our policy at the election. They will increase the number of jobs by 65,000. We do not dispute that; it is the same figure that we provided. The tax cuts will increase jobs by 65,000. The economic security package will increase the number of jobs by 56,000—that is what we have been advised. As a result of the meeting of COAG last weekend there will be an increase in jobs—it will create 133,000 jobs. I just find it curious that on the subject of the whole framework of our workplace relations the government is completely silent on jobs and what the impact on jobs will be.

In closing, I would like to read what Paul Kelly said in the Weekend Australian. He said:

... the Government will be responsible for all the consequences of imposing on Australia at a time of unusual financial crisis a workplace relations system that means higher costs, a weaker labour market, a more interventionist umpire and a union movement with greater legal powers.

That goes to the heart of my concerns, which relate to jobs. That should be the concern of all members of this House. We should be doing all we can to create jobs, especially when it is very clear that we are approaching a softer labour market and a period of higher and rising unemployment. As an opposition we need to have all the evidence before us in terms of the economic impact and the Treasury analysis of this legislation.

Mike Symon (Deakin, Australian Labor Party) Share this | Link to this | Hansard source

It is with great pleasure that I rise to speak in support of the Fair Work Bill 2008. This bill delivers on the promise that Labor took to the people at the 2007 election, when we promised to rip up Work Choices if elected, in our policy statement Forward with Fairness. Work Choices was foisted on the Australian people by John Howard and many Liberal Party members who remain in parliament to this day—former workplace relations ministers such as the member for Warringah, the member for Menzies and the member for North Sydney. And how could we forget the member for Higgins smirking away as he voted to rip off working people’s wages and conditions? These people got to vote on Work Choices; the Australian people did not get their chance until two years later. That is the gist of this story. Work Choices was not mentioned by the coalition at the 2004 election. There was not a single word about ripping off workers’ rights and conditions—no safety net, no rights at work, no cooperation in the workplace to take the nation forward. The ACTU Your Rights at Work campaign, however, made sure that this did not occur in silent acceptance. On national TV and in electorate after electorate, the Your Rights at Work team made sure the public knew what had been done to them by the Howard government and rightly called for a change. Today, just over a year on from our election, the Rudd government are delivering these promises to the Australian people.

The essential points of the Fair Work Bill are based upon the principles of fairness. The bill balances the interests of employers and employees and the granting of rights and the imposition of responsibilities in various industrial instruments. Most importantly, the Fair Work Bill delivers a fair and comprehensive safety net of minimum employment conditions that cannot be stripped away. These protections start with the National Employment Standards, which provide minimum standards for all employees. Unlike Work Choices, which only provided five minimum standards, the minimum standards in the NES relate to maximum weekly hours, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal leave, carers leave and compassionate leave, community service leave, long-service leave, public holidays, notice of termination and redundancy pay. The second part of the safety net is the modern award. Modern awards are currently being developed by the Australian Industrial Relations Commission for employees on less than $100,000 a year indexed. Modern awards will build on the National Employment Standards and will cover a further 10 subject areas, including minimum wages, arrangements for when work is performed, overtime and penalty rates, allowances, leave and leave loadings, superannuation and, importantly, procedures for consultation, dispute resolution and the representation of employees.

The Fair Work Bill guarantees a safety net of fair, relevant and, very importantly, enforceable minimum terms and conditions for Australian workers. These minimum terms and conditions can no longer be undermined by the making of statutory individual employment agreements, such as the much hated Australian workplace agreements that many employees were forced to sign as a condition of acceptance for a job offer. Who can forget the case of the Spotlight workers, whose wages and conditions were ripped off under the Liberals’ AWAs by the enormous sum of 2c per hour, or the stories of video store workers losing their protected conditions in exchange for one free video rental per week. We heard stories about service station attendants losing their accrued entitlements because a transfer of business to another employer meant they were left in the lurch and got zero. Work Choices ripped off conditions and stole wages out of the pockets of those workers who could least afford it. The Fair Work Bill provides for minimum wages in modern awards to be reviewed every year by a specialist minimum wage panel within Fair Work Australia. The minimum wages in modern awards will override any lower rates in an enterprise agreement, with the effect that, if an enterprise agreement is entered into and an award manages to take it over in pay scales, then the rates will follow that award. Fair Work Australia will also be required to make a national minimum wage order to provide minimum wages for all award-free employees.

The collective bargaining arrangements contained in this bill are a great step forward for working people. By simplifying access to agreement making, many more workers will be able to move above the safety net minimums. With the safety net of the National Employment Standards and modern awards that provide a floor for collective bargaining, there are many opportunities for both employees and employers to improve productivity and wage outcomes. There is significant evidence that enterprise bargaining benefits employees, employers and the economy, and I, for one, would like to see more Australians benefit from it. In particular, I would like to take note of the good faith bargaining provisions that allow Fair Work Australia to make orders to ensure compliance with the good faith bargaining requirements. Firstly, the bill provides that, where an employer refuses to bargain with its employees, an employee bargaining representative, such as a union, can ask Fair Work Australia to determine if there is majority employee support for negotiating an enterprise agreement. If so, the employer will be required to bargain collectively with its employees in good faith.

Good faith bargaining requires that bargaining representatives for a proposed enterprise agreement must meet. That does not sound all that hard. This would include attending and participating in meetings at reasonable times. Again, you would think that would be a very easy process. This process also includes disclosing relevant information and responding to proposals on the table—again, a very reasonable process. Importantly, it is about giving genuine consideration to the proposals of others and giving reasons for responses to those proposals. Good faith bargaining also requires parties to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. If Fair Work Australia issues a good faith bargaining order which is ignored by a bargaining party, the other party may apply to Fair Work Australia to intervene in the dispute and make a workplace determination. There are also provisions in the bill to cover multiemployer bargaining. Where employees and employers genuinely wish to bargain on a multiemployer basis, they will be free to do so. But, unlike the more common single-employer enterprise agreement, protected industrial action and good faith bargaining orders are not available in these circumstances. There are many situations where multiemployer bargaining already operates in a de facto form, and this worthwhile change reflects the current reality.

Significantly, the Fair Work Bill provides a special new stream of bargaining for low-paid employees in industries such as child care, community work, security and contract cleaning. There will now be the possibility of a workplace determination in the low-paid stream in two circumstances: (1) by agreement between the parties or (2) if there is no reasonable prospect of an agreement being made. If there is no reasonable prospect of such an agreement being made, access to a workplace determination is subject to strict criteria, including that there is no enterprise agreement in place and that the employment conditions of the employees are substantially the same as those in the safety net.

All matters pertaining to the relationship between the employer and its employees, as well as to the relationship between the employer and a union representing those employees, will now be able to be the subject of bargaining. Agreements can also deal with the deduction of wages for any purpose authorised by the employee and contain terms dealing with how the agreement will operate. This means salary sacrifice and payroll deduction arrangements can be formally included in agreements, and it also allows for terms that set out how the parties agree to conduct negotiations for a replacement agreement.

The Fair Work Bill also greatly enhances dispute settlement provisions within agreements. To assist the parties in dispute settlement, Fair Work Australia will be able to exercise broad conciliation powers at the request of just one of the parties. If the parties have bargained in good faith, they will be able to walk away without having a settlement imposed on them. Where the parties agree, Fair Work Australia may also make a binding determination on the matters in dispute. In the limited circumstances where protected industrial action is occurring in a bargaining context that has a particularly negative or dangerous impact, scope will be provided for Fair Work Australia to resolve these disputes by making a workplace determination.

A new ground for Fair Work Australia will be the making of a workplace determination where protracted industrial action is causing significant economic harm to the bargaining participants or where such harm is imminent. This is only intended to apply to the small number of disputes where industrial action continues for an extended period and where the employees and the employer suffer greatly and yet the parties are so locked into their positions that there is no hope of a breakthrough in negotiations. Disputes like that that spring to mind quite readily include the Boeing dispute of recent times, where there were many workers locked out, and also the Smorgon dispute of a few years ago, which also dragged on for a particularly long time and where the Industrial Relations Commission was pretty much prevented from coming to a resolution on the process because both parties would not agree that the dispute should go to the commission.

I also highlight the section of the bill titled ‘general protections’, which incorporates the current provisions relating to freedom of association, unlawful termination and other miscellaneous protections into one section. The Fair Work Bill’s general protections ensure that employees remain free to choose to be represented by a union and, significantly, provide more comprehensive protections for those participating in collective activities such as representing other employees or bargaining. This is particularly important in the area of workplace rights as it allows an employee to make a complaint or inquiry without fear of sanction from an employer. These rights will also apply to prospective employees, and sanctions will be available where a person takes adverse action because someone exercises one of those rights. Importantly, employees with carers responsibilities will also now be protected from discriminatory treatment if they are attempting to access a workplace right such as the use of carers leave entitlements.

Under the Liberals’ Work Choices, employees in any business with up to 100 workers could be dismissed for any reason or for absolutely no reason at all, without any rights to challenge the dismissal. As we well know, this unjust law was pushed through parliament as soon as the Howard government gained a majority in both houses. It is well worth remembering that Work Choices is still here right now, still ripping off workers’ rights and conditions such as unfair dismissal every day. Even in businesses with more than 100 workers, many employees are denied unfair dismissal rights because Work Choices exempts employees dismissed for genuine operational reasons. Short-term casual employees, fixed term trainees—there is a whole list of them—do not necessarily get those rights, even in a large business.

Abolishing the Liberals’ 100-employee exemption and replacing it with the six-month and 12-month provisions of the Fair Work Bill will allow an estimated 6.7 million employees to access unfair dismissal provisions. That is around 80 per cent of all employees and compares with a figure of 3.7 million—that is, 44 per cent—of employees who currently have access to unfair dismissal provisions. The Fair Work Bill provides a new scheme of unfair dismissal protections to ensure good employees are protected from being dismissed unfairly. Employees of a small business with fewer than 15 employees will be able to claim for unfair dismissal after they have served a qualifying period of 12 months, whilst for larger businesses the qualifying period is six months. The Liberals’ ‘operational reasons’ will no longer be a defence to a claim of unfair dismissal as it is to this very day under the Liberal Party’s Work Choices. A dismissal will not be regarded as unfair if it is for reasons of genuine redundancy.

There are of course many other areas in the Fair Work Bill where vast improvements have been made on the failed workplace relations system that is Work Choices. One of these areas is right of entry for unions to hold discussions with members or potential members in the workplace. This right can no longer be stripped away by an AWA or non-union agreement, as Work Choices allows. Another area is the removal of the reverse onus of proof in relation to industrial action, which currently requires employees to prove the workplace is unsafe, rather than requiring the employer to prove that the workplace is safe. As a basic OH&S principle, all employers should be able to prove that their workplace is safe.

The Leader of the Opposition put out a press release last week that said Work Choices is dead and the member for Boothby repeated that line in the House this morning, but I ask the question: how long for? We have seen time after time the Liberal and the National parties vote to keep Work Choices alive in the past. What has changed now? I proudly commend the Fair Work Bill to the House.

Tony Abbott (Warringah, Liberal Party, Shadow Minister for Families, Housing, Community Services and Indigenous Affairs) Share this | Link to this | Hansard source

We are at the beginning of what will no doubt be a long and passionate debate on the Fair Work Bill 2008. We have just heard a contribution from the member for Deakin and there are many changes that we need to get used to, but I caution government members against too much triumphalism on this subject. I certainly accept, as indeed all opposition speakers will, that the Australian people voted against Work Choices. But it does not follow that, because they voted against Work Choices, they voted in favour of the union movement and the ambit claims of the union movement. The Australian people, as we now clearly know, did not like Work Choices’ original abolition of the no disadvantage test, but they certainly did like the vast expansion in jobs, the massive increase in real wages and the tremendous reduction in industrial disputation that was associated with the workplace reforms of the Howard government.

I also, if I may—with the humility appropriate to a member of a defeated political party—suggest to members opposite that in the end workplace relations legislation has to be about businesses and the people who work in them. Unions are significant, but they are significant because they represent workers; they do not—or should not—have any particular rights or status that are not derived from the fact that they represent workers. The problem underlying the bill which the government now has before the House is, if I may say so, that it seems much more about the rights of unions than about the rights of workers.

Mr Deputy Speaker Bevis, as you would remember I was the workplace relations minister between 2001 and 2003. Let me reminisce for a moment about those days, when you were the shadow minister for workplace relations—and a highly competent and extremely well-informed one—and say how proud I was to preside over a system which delivered more jobs and higher pay to Australian workers. That system was based on the former government’s philosophy, which was to provide more freedom to workers and managers. The former government trusted people to appreciate the interests that they had in common. It did not pretend that there would not be clashes from time to time, but it realised that in the end Australian workers and Australian managers have the intelligence and goodwill to organise their own economic lives in ways which the previous system did not always appreciate. So we wanted to see more freedom, but we also wanted to see freedom under the law. I will again reminisce for a moment by saying that the appointment of the Cole commission into the construction industry was, if I may say so, the highlight of my time as the workplace relations minister and that the ultimate establishment of the Australian Building and Construction Commission, which has largely prevented bullying and intimidation in the commercial construction industry and has created a multibillion dollar boost to Australian production and productivity, is something which I hope will be long remembered.

The Howard government’s workplace relations changes were an important factor in the general prosperity of the last decade. Let us never forget that, whatever faults Work Choices might have had, it helped to produce the fastest jobs growth in Australian history. Between 1996 and 2007 there were 2.1 million new jobs, there was a 20 per cent increase in real wages and strikes dropped to their lowest levels on record. I note that since late November last year unemployment has started to rise, wages have stagnated except in a few key areas and, while it is off an extremely low base, the strike rate is already up six times. I am not saying that all of this is the result of the changed industrial relations climate associated with the new government or in anticipation of the workplace bill which has been brought before this parliament. My contention is that the new industrial laws will make a bad situation worse and that the last thing we should be doing, with the international financial turmoil and the prospect of severe recessions in our major trading partners, is to make it more difficult to employ and to invest, and that is precisely what this bill does. I accept that the government has a mandate to, as they say, kill Work Choices, but it certainly does not have a mandate to make a great leap backwards to 1970.

This bill not only reverses Work Choices but betrays the spirit of the last Labor government, the Hawke-Keating government, which, to give it credit, was in its own way a great reforming government. This bill does not have the courage, insight or innovation that the former Labor government had when it cut tariffs, when it began the process of privatisation and when it deregulated the finance sector. I point out that all of those significant Hawke-Keating government reforms were opposed by the union movement. This bill, by contrast, turns back a significant reform. It not only turns back and undoes Work Choices but undoes the 1996 workplace relations changes negotiated by my distinguished friend and predecessor Peter Reith through a hostile Senate and even the 1993 legislation of the former Prime Minister Paul Keating, which was the beginning of serious workplace relations reform in this country.

The prosperity of the last decade would be unimaginable without a two-decade-long reform process undertaken in this country first by the Hawke-Keating government and then by the Howard government. Let us not forget where Australia was economically in 1983. We had had eight decades of economic stagnation associated with overregulation of our economy and with stifling of the innovation, the creativity and the sense of partnership of the Australian people, and that was reversed step by step, first by the Hawke-Keating government and later by the Howard government. What we are now doing is unravelling the process of hard-won reform.

This bill also portrays the commitment that the current government took into the election—yes, to kill Work Choices, but otherwise to govern as an economic conservative. An economic conservative solves existing problems; an economic conservative does not create new ones. An economic conservative hearkens to the best instincts of the people, not the worst ones; hearkens to a golden age, not an age of stagnation, not an age of embarrassing failure. This bill covers, as the previous speaker has outlined, a vast range of economic activities. But that is not the bill’s virtue; that is the bill’s vice, because every economic activity which is now to be regulated and controlled is economic activity which is no longer to be freely undertaken by the workers and managers of this country.

I will quickly go through some of the specific problems of this legislation. First of all, it gives unions unprecedented power to interfere in wage discussions between workers and managers. As has been repeatedly pointed out since the bill’s introduction last week, it is only necessary to have one union member in a workplace for a union to require representation in wage negotiations. Second, it gives unions unprecedented right of entry into workplaces. There is no need for a union to have a member in the workplace; it is only necessary for the union to have a potential member in a workplace for that union to be able to enter that workplace and inspect its employment records. Third, this bill imposes good faith bargaining—in exhaustive detail—on workplaces. Not only does it impose so-called good faith bargaining on workplaces but it also establishes an intrusive new body with the Orwellian title Fair Work Australia to investigate and enforce all aspects of so-called good faith bargaining in workplaces. Fourth, this bill provides for pattern bargaining for low-paid workers. This is a clear breach of election commitments and essentially means that in any industry with low-paid workers Fair Work Australia can call the shots. Whatever this is, it certainly is not what Labor promised going into the election and it certainly is not going to give Australia and Australian workers the freedom and the flexibility needed to cope with the coming economic downturn. Fifth, and finally, it seems—and I stress ‘it seems’—that this bill does actually allow bargaining fees and, if my reading of the bill is correct, that too is a clear breach of Labor’s pre-election commitments and a way of effectively enforcing, via a bargaining fee, the closed shop on unwilling businesses and unwilling workers.

As the Australian’s Paul Kelly—the great chronicler of the long political reform movement in this country—has said, the last thing that this country needs on the eve of a global economic downturn is legislation of this kind. It really is the last thing that Australia needs at this time, and my fear is that this legislation will lead to, effectively, a strike by the employers of this country. This legislation will lead to small businesses downsizing or closing and it will lead to large businesses relocating overseas, because what this legislation does not comprehend is that there are really only two essential ingredients for every job: yes, you do need a worker in order to have a job but, first and foremost, you cannot have an employee without having an employer. And no-one can be forced to employ. The problem with loading up employers with the kinds of onerous and intrusive new regulations that this bill provides for is that it is going to make a lot of current employers a lot less likely to employ in the future than they have been in the recent past.

The Deputy Prime Minister and Minister for Employment and Workplace Relations, in introducing this bill, said:

… the ideal of fairness should lie at the centre of our national life.

At one level, it is a motherhood statement; who could disagree with that? But what she fails to appreciate is that fairness to one can easily be oppression to another, and it is important that we are fair to everyone in this country, or as fair as we can reasonably be. We should not have a surfeit of fairness for some people and some organisations which produces a surfeit of oppression for other people and other organisations. In all this stress on fairness, what about freedom? Isn’t that an important value as well? How much fairness can there be if there is not also freedom? Isn’t freedom just as much the birthright of Australians as fairness?

The Deputy Prime Minister does not seem to appreciate or understand that hurt and bruises are also an inevitable part of real life and that, without a certain amount of rough and tumble, you cannot also have effort, virtue and humanity. This attempt to abolish from the workplace anything that anyone associated with the union movement might find objectionable is not going to produce a better workplace and is certainly not going to produce a more prosperous Australia. It could well end up demonstrating the truth of the wise old saying: that so often the best is the enemy of the good.

Last week was at one level a great week for the Deputy Prime Minister. She acted in the Prime Minister’s stead. She performed with great aplomb and panache in this place. She more than showed up the parliamentary deficiencies of the Prime Minister last week. Of course, she introduced legislation which certainly will strengthen her position with the union movement, which continues to form the political and financial backbone of her party. But what she did last week, and what she is currently so proud of, I am confident will turn out to be the workplace equivalent of Medicare Gold, that other policy disaster that will forever be linked with her name.

The problem with the legislation that this parliament is currently debating is that it will inflict long-term damage on the economic strength of our country, it will inflict long-term damage on the capacity of Australian businesses to employ Australian workers and it will inflict long-term damage on the capacity of Australian workers to perform at their best. The great thing about the last two decades of sustained reform is that we have seen in recent years Australia taking on the best of the world and winning, not just in sport but in business, industry and economics. My fear is that that golden era in Australia’s economic history is about to end. Thanks to this misguided legislation now before the House, legislation that goes much further than any conceivable mandate that the Labor Party might have had, the coming Rudd recession will be turned into long-term economic stagnation and permanent economic decline, which is the last thing that this parliament should be doing.

Annette Ellis (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

It is a pleasure to rise today to speak on the Fair Work Bill 2008. As has been said by other speakers in this debate, a little over 100 years ago Sir Justice Higgins, in response to his concern about the living standards of Australian workers, brought down the Harvester judgment, which established the first wage-fixing system in Australia. He set the minimum wage for unskilled labourers at £2 2s per week, based on the cost of living of the average worker for food, shelter and clothing. This judgment became the basis of our industrial relations system and set the standard over the next 90 years of decent living conditions and social equity for Australian workers and encompassed the Australian ideal of a fair go. The concept of a fair and decent industrial relations system came to an end when the former government introduced Work Choices.

I have to reflect briefly on a couple of comments made by the previous speaker, the honourable member for Warringah. He talked about freedom and fairness. I cannot think of anything less free or fair than the case of a 16-year-old student in my electorate. Her family came to me at the height of Work Choices and told me that she had no option but to give up her weekend job that was paid by the hour because the employer had decided to pay her less and less. She basically became employment fodder for that employer. It was under the auspices of Work Choices that he was legally able to do that. She had no freedom for good employment and she had no fairness in the way she was being paid and treated as an employee in that workplace. She was not Robinson Crusoe; a lot of people, particularly young people and women, were treated very badly under Work Choices. There was no freedom or fairness at all.

The other observation is that the previous speaker dislikes this legislation to the point that he has now linked his government with the Hawke-Keating government as some form of restitution. I may have to have a bit of time to come to grips with exactly what he may be suddenly conceiving as philosophies of the one mind. I cannot think that they are philosophies of the one mind.

The workplace rights that Australians had before Work Choices were swept away and replaced with a system that provided no safety net, no rights in the workplace and no guaranteed access to conditions such as overtime and penalty rates. They were all up for grabs. It established a system whereby employees were left with no protection and no bargaining power. It was a case of: ‘Here’s your individual contract. Sign it. If you don’t like it, that’s tough. Off you go. Maybe you will find a job somewhere else.’ Those are not what I would call free and fair employment conditions. Not only was Work Choices unfair to Australian workers; it was also 1,500 pages in length and very complex and difficult to understand. This created difficulties in the implementation of those laws for the many employers who were attempting to understand those laws.

A little over a year ago the Australian people, not the unions, sent a very clear message to the then coalition federal government. They were tired of the mean-spiritedness of the government, not least of all in the area of industrial relations, and they overwhelmingly voted against Work Choices. The Fair Work Bill 2008 will reintroduce fairness into the workplace. The legislation will be easier to understand in terms of structure, organisation and expression. It will reduce the compliance burden on business by avoiding microregulation and overly prescriptive provisions and by conferring broad functions and appropriate discretion on Fair Work Australia.

The bill was formulated through a thorough and exhaustive consultative process with many stakeholders, including employer and employee groups and state and territory governments. The laws are balanced. No one group got everything they wanted—that has to be said. The government’s aim was to restore balance to the system, and this bill will go a long way to achieving that objective. It is a fair and comprehensive system of employment conditions that cannot be stripped away. It is made up of National Employment Standards that will apply to all employees and cannot be overridden.

There are 10 National Employment Standards. The maximum weekly hours of work will be 38 hours per week for full-time employees, with additional provisions for maximum hours for part-time employees. Flexible working arrangements will allow parents or those responsible for the care of a child under school age to request a change in working arrangements to assist with the care of a child. An employee will only be able to refuse this request on reasonable grounds. Parental leave and related entitlements will provide for maternity, paternity and adoption leave. As the patron of the Adoptive Parents Association of the ACT, I know of many constituents in my electorate who will be particularly pleased with this news. It will provide to both parents a right to separate periods of up to 12 months of unpaid parental leave. Additionally, one parent will have the right to request a further 12 months leave, and it will only be able to be refused on reasonable business grounds.

The annual leave provision will guarantee four weeks annual leave to all full-time employees and an equivalent pro rata amount to part-time workers. The major change in this area will be the accrual method and the concept of ‘service’ for calculating entitlement. Annual leave will be accrued on ordinary hours of work, but there may be other provisions such as allowing an employee to take twice the annual leave required by the National Employment Standards at half the rate of pay.

With respect to personal carers leave and compassionate leave, the amount of paid carers leave that can be used will no longer be capped at 10 days per year. This provision will also replace complex rules regarding the accrual of leave with a simple rule that consolidates notice and evidence rules for taking leave. As chair of a committee in this place that is currently conducting an inquiry into carers, I know that employment issues are a common theme within that inquiry. I am sure that many carers will look at these provisions with great interest.

Although it is currently lawful to terminate an employee’s employment for absence due to a voluntary emergency management activity, there is no entitlement to community service leave in the current act. The National Employment Standards will enable employees to take unpaid leave to undertake an eligible community service activity such as jury service or voluntary service management. The National Employment Standards contain provisions for employers to make up payments for a period of up to 10 days at the base rate of pay for employees undertaking jury service, for example.

Long service leave is currently provided for by state and territory legislation. However, the federal government is working with the states and territories to develop nationally consistent long service leave entitlements—and won’t that be welcome!

The National Employment Standards will provide for a base rate of pay for ordinary hours for an employee who is absent on a public holiday. An employer may make a reasonable request for someone to work, but the employee may refuse on reasonable grounds.

The provision dealing with notice of termination and redundancy pay will provide for written notice in these areas. It provides a new entitlement to redundancy pay. However, this does not apply to small business. From 1 January 2010 employers will be required to give a copy of the Fair Work Australia information statement to all new employees.

The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, the transition act, will bring 10 matters into effect as a result of modern awards. They are: minimum wages and classifications, types of employment, arrangements for when work is performed, overtime rates, penalty rates, annualised wage or salary arrangements, allowances, leave related matters, superannuation and procedures for consultation, representation and dispute settlement.

This bill also brings into effect many positive changes in other areas, including: the transfer of a workplace agreement following the sale of a business; the introduction of good faith bargaining; the widening of content in workplace agreements; an assurance that the agreement passes the ‘better off over all’ test to ensure that workers are never disadvantaged by the terms of a new agreement; the right of entry to a workplace by a union wishing to represent its members, with strict conditions and guidelines attached that affect both employers and employees; freedom of association; unfair dismissal laws that protect employees without putting undue operational constraints on business; and protected industrial action, again with strict conditions governing the action.

Finally, this bill will bring into being Fair Work Australia, which will streamline the current industrial relations system by replacing six different organisations: the Australian Industrial Relations Commission, the Australian Industrial Registry, the Australian Fair Pay Commission, the Workplace Authority, the Workplace Ombudsman and the Australian Building and Construction Commission. Its functions will be varied and wide. They include dispute resolution, minimum wage setting, ensuring good faith bargaining, facilitation of multiemployer bargaining for the low paid and approval of agreements.

This legislation is comprehensive and, I believe, strikes the correct balance. In the Sydney Morning Herald last week, Dr Rae Cooper, Senior Lecturer in Economics and Business at the University of Sydney, wrote:

It—

the legislation—

has some promise. It sets out expanded national minimum standards and a new, regular process for setting minimum wages. It recasts the collective bargaining system, giving unions new rights, compelling employers to bargain “in good faith” and provides for a strong role for the industrial umpire to help the parties to resolve their differences.

Notably, the legislation recognises the special needs of low-paid workers, including by giving them easier access to arbitration.

Dr Cooper went on to say:

The Rudd Government’s emphatic election victory last year ... has given it the confidence to remake a new industrial relations system.

Will the people opposite object to this bill? Yes. Why? Because there is a vast philosophical difference in this country between those on this side of the House and the people on the other side of the House, who still believe that Work Choices is manna from heaven that they need to applaud. We do not believe that. We are not going to allow people to suffer any longer. The people that I have referred to—that young woman and many others in our electorates—really suffered under Work Choices. It was really tough. Members opposite, including the previous speaker, keep saying, ‘The unions, the unions, the unions!’ The fear of the unions, this bogeyman of Australian society, is still somehow in their minds. The reality is that the Australian people voted us in with a mandate to do what we are now doing—and we are doing it with pride and we are doing it knowing that it is going to amend a decade of disastrous industrial law in this country. I commend the bill to the House.

Don Randall (Canning, Liberal Party, Shadow Parliamentary Secretary for Energy and Resources) Share this | Link to this | Hansard source

I rise to speak today on the Fair Work Bill 2008 and the implementation of Labor’s workplace reforms. The coalition does accept that the Rudd Labor government has a mandate for workplace relations changes, as proposed in its election policy last year. But the government does not have a mandate to be extreme and sneaky, it does not have a mandate to destroy Australian jobs and it does not have a mandate to destroy the Australian economy through this bill. In her second reading speech, the Deputy Prime Minister and Minister for Employment and Workplace Relations, Ms Gillard, said this bill is ‘good for employees, for employers, for families and the economy’. This must not be another broken promise by the Rudd government.

Significant parts of this bill were not part of Labor’s industrial relations platform at the election, including the reintroduction of compulsory arbitration, pattern bargaining and the expansion of union rights of entry to workplaces. In fact, before last year’s election Minister Gillard indicated that the existing laws had balanced the rights of employers and unions and Labor did not want to jeopardise productivity or cause industrial unrest. Now that has all changed. This is something that I will elaborate on extensively later.

When I spoke on the transition to Forward with Fairness legislation earlier this year, I spoke about the importance of flexibility for workers, the importance of a safety net and, predominantly, the creation of jobs and keeping people in work. In these tough economic times, jobs must be a priority. The Prime Minister’s war, in this case on unemployment—and he has a war on everything—must be more than just rhetoric. The legislation must not destroy jobs. A Senate committee process will examine the key elements of the legislation, and the coalition will reserve its right to move responsible amendments. Importantly, the legislation establishes Fair Work Australia, the ‘all-powerful’ new independent body that will oversee the operation of this bill and also the Fair Work Ombudsman, who will replace the existing Workplace Ombudsman.

The government’s changes to workplace relations come at a very difficult time for the Australian economy. The coalition trusts that these government changes have been carefully considered and will not cost jobs—but the proof of the pudding will be in the eating. As we know, this government has been handed an Australian economy in pristine condition, with no debt, a surplus generated by the coalition and a future fund for savings with more than $60 billion in it. The condition that the Australian economy is in is one of the reasons why Australia will be able to get through the global crisis far better than many other countries. The scary part is this legislation destroying flexibility and productivity. When we have a workforce that has its lowest unemployment level, at 4.3 per cent nationally, that level must not be put in jeopardy.

The Organisation for Economic and Community Development expects that by 2010 Australian unemployment could be at six per cent. That means that there will be at least 200,000 more Australians out of work than there are now. You will recall that the coalition had a strong record of job creation. In fact, 2.2 million jobs were created on the coalition’s watch, with around 60 per cent of them being full-time positions. The move in recent times has been towards greater casualisation of the workforce, something that the Labor Party railed against when in opposition. Unemployment under the coalition was at its lowest level in 30 years. Labor inherited from the coalition last year an unemployment rate of 4.3 per cent. In 1996, Labor had left us with a rate of 8.1 per cent. Remember how far that blew out under the Hawke-Keating governments—to over 11 per cent! The Labor Party are not very good at actually creating jobs. They are very good at destroying jobs. This is the real concern with this sort of legislation: has this really been taken into account? Turning to wages, real wages increased under the coalition by 21.5 per cent compared to them actually decreasing by 1.8 per cent under the 13 years of the previous Labor government. That is a stark contrast as to who creates jobs and who creates improvements in real wages.

This legislation will be judged on its ability to create jobs, maintain productivity, bring lower inflation and continue to deliver lower levels of industrial action. The Australian people will eventually be the judge. On inflation, let us remember that, in line with the Reserve Bank of Australia’s preferred band, inflation was kept under three per cent for all of those coalition years. However, on taking office the Labor Party wanted to hype up the inflation mantra, so we kept hearing about genies out of bottles, which put pressure on the Reserve Bank to lift rates. The bank did and now we can see the consequence, as rates now have to be addressed. This is all part of the matrix of the Labor Party’s inability to manage a strong and productive economy.

In the electorate of Canning there is a labour force this year of 70,804 people. The unemployment rate in Canning was 4.1 per cent in June 2008. This was down from 8.4 per cent in December 2001, when I became the member for Canning. In other words, under the coalition the unemployment rate in my electorate more than halved. Currently the local rates of unemployment are as follows. In the main centre of Armadale the rate is 4.6 per cent. In the City of Mandurah, it is 5.7 per cent. It has gone up 0.6 per cent in the last six months. I have said before in this place that unemployment levels in Canning, particularly in the Mandurah area, were very high when we look at a publication called Peeling away the mask, which not only detailed the unemployment rates but described the lack of social cohesion and the issues that people in the high unemployment area of Mandurah were facing. But, as I said, the unemployment rate is at 5.7 per cent these days. The problem is: how long will it stay at such a low level? When I was elected to the seat of Canning in 2001, youth unemployment was extremely high. It has come down to a very small figure—in fact, about a quarter of what it was when we took office in Canning in 2001. It is one of the great tragedies that this inflexible regime that could be foisted upon us would see a lot of young people not only out of a job but without the ability to secure a job.

The matter of individual statutory agreements was dealt with earlier this year in the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008. The coalition has been advised by industry that the government’s changes in the Fair Work Bill to provide individual flexibility in awards and agreements are sufficient. One in three Canning workers—in other words, 29,382 people—were employed under flexible workplace agreements, giving this electorate the second highest take-up of AWAs in the country. We know that ‘AWA’ in this place is a dirty word, but the Canning electorate was evidence of the fact that people sought to gain not only those individual agreements but the benefits that flowed from them—jobs, higher pay and individually negotiated conditions. As I have mentioned previously in this place, the seat of Kalgoorlie had the highest number of AWAs in Australia. That certainly has something to do with the mining industry, but many other electorates in Western Australia had thousands and thousands of people on individual agreements. That may have had something to do with the fact that, at the last federal election, Western Australia actually gained a seat—the only state to gain seats from the Labor Party.

Western Australia has an unemployment rate of 2.2 per cent, which is just unbelievable in this current environment. It is well below the national average of 4.3 per cent. The teenage unemployment rate is 11 per cent. I will be watching very closely the impact of this legislation on the Western Australian workforce. With mining and construction being one of the foremost industries in Western Australia, the input of industry is very important. Premier Barnett has warned that any industrial unrest will drive investment out of Western Australia, with the threat of strikes sending the wrong message to potential investors. I say to my colleagues in this place, and to the rest of the country, that it is really quite fortunate in this current environment that we do have a Liberal coalition in Western Australia, because we know that more than 30 per cent of this nation’s income comes from Western Australia—in fact, many of the mendicant states like New South Wales, which is an absolute basket case, are living off the teat of Western Australia in this current economy. We are having to carry the country, and thank goodness there is a coalition government that is going to protect the jobs of workers, protect the industries that provide those jobs and protect the exports and the income that is derived from the industries in Western Australia.

I was fortunate enough recently to go to the Burrup Peninsula and see the Woodside operations there, where they are investing billions of dollars in future income earnings in Western Australia. This will have a flow-on effect through royalties both to Western Australia and to Australia—we will keep the rest of this country in good health. So the impact in Western Australia is going to be crucial to the wellbeing of the Australian economy.

We know that the government and the department have had extensive consultations with industries throughout the compilation of this legislation. The Australian Chamber of Commerce and Industry met last week to discuss the Fair Work Bill. Executives expressed concern about the prospect of additional regulation and labour costs at a time of global financial instability and downturn in business. The ACCI noted that the legislation was:

… skewed to union rights; higher wages and conditions in modern awards; new industrial relations rules affecting outsourcing, redundancies and the sale of businesses; wider union entry rights; adverse impacts for investment certainty and stable industrial relations in some sectors; and unnecessarily broad scope for compulsory arbitration of agreements.

When you just say, ‘Oh, look, we have consulted widely, and others agree with us,’ don’t forget the ACCI speaks for a huge range of employers. Industry must be brought fully up to speed, should the legislation be implemented, by its start date of July 2009.

Within the government’s new workplace relations framework, union accountability must be maintained and unlawful behaviour penalised. That is why the watchdog must be kept in place and its powers not watered down. There is some belief that this is where the government may be heading after it receives its report. This gives too much power back to the unions. I wonder why the Labor Party want to give power back to the unions. We know it has something to do with them giving $30 million towards the last election campaign. We know it has something to do with the fact that union members were out there manning the polling booths in my electorate, and every other electorate in Australia, and making sure that they got their Labor mates back in. We know that this place has former ACTU presidents in it—it is almost a retirement home for ACTU presidents. We know that the member for Maribyrnong and the member for Charlton want to be in this place as former union bosses because they want to help control legislation like this—it is in their DNA; it is in their heritage. As the hereditary peers in the Labor Party they want to make sure that they can gain control back over the workplace by using this place as a tool.

Remember under Labor that the average number of days lost to strikes per year was 22.6 working days per 1,000 employees. In September 2007 this was down—this is unbelievable—from 22.6 working days to 1.2 working days per 1,000 employees, an absolutely notable figure. Even the Australian Industry Group’s chief executive, Heather Ridout, said last week:

Unions will need to be responsible in their use of the new laws or risk causing economic damage at the worst time for Australia when pressures on business and employment are intense.

She is right. The new right of entry provisions are beyond extensive. With 24 hours notice union officials have the right to enter any workplace to inspect the books and hold meetings for recruitment—get names, addresses and superannuation details of members. I wonder if people in workplaces when they voted for the Labor Party knew that this legislation would allow union thugs to walk in on worksites and go and check the records of payments, addresses and personal details of non union members. This is what this sneaky legislation is actually paving the way for. All that is required to inspect non members’ records is the investigation of any alleged breach—and here comes one of the captains. Any fabrication will be possible. As the Australian’s Paul Kelly wrote on the weekend:

… the new right-of-entry provisions for unions are extra-ordinary and unacceptable in a democracy.

Last year, barely 15 per cent Australia’s workforce belonged to a union. But, with around 70 per cent of Labor Party’s frontbench being ex-union officials and with the union spending, as I said, in excess of $30 million in Labor’s campaign, one can only see why the unions are being repaid with additional power.

As I mentioned earlier, the Labor government did pledge to retain existing rights of entry. Such an extension of power gives a green light to union heavyweights to continue their thuggish behaviour. I might mention on this issue the misuse of safety issues for rights of entry. This was well documented in the Cole commission with the likes of Joe McDonald going onto work sites claiming bogus safety issues which were found out later to be just a sneaky way of getting on site and causing havoc for the builder or the construction company and for recruitment. I might add, just recently, Kevin Reynolds and his mate Joe have been re-elected in Western Australia and Reynolds claims that he now has a mandate for militancy, and that after being re-elected he believes that he now has the ability to extend his militant behaviour on all work sites in Western Australia.

Obviously industry is concerned about the wielding of union power. The West Australian last week reported that the provisions in the Fair Work Bill 2008 relating to unions could lead to harassment in the workplace. The Australian Mines and Metals Association noted that, while you are trying to have your lunch, you could have someone tapping on your shoulder saying: ‘Hey mate, are you member of the union? If you’re not, you should be.’ It is annoying and harassing. They are supposed to only be there on 24 hours notice in a prearranged place such as the crib room during lunchtime or breaks. But that will not stop the likes of Joe McDonald. He has been warned off. It is illegal for him to be on sites, but he just ignores that and goes there and causes mayhem. I have had phone calls to my office from people trying to do business in their area saying: ‘Joe is here again. How can we get him out of the place?’ With his great braces and pot belly, he is the stereotype of the union thugs that we are talking about.

Kevin Reynolds’s recent election win, as I said, gives him this mandate. The image of him wearing a T-shirt of his guerrilla revolution with Che Guevara on the front is embedded in our memory. This legislation could see him more and more on building sites wearing it. Then we have his mate, Joe, hurling abuse at representatives on Perth work sites. We saw that on the ABCC footage dealing with his unlawful rights of entry, where he was hurling obscenities at the bosses and workers who would not join the union. This is just one of several examples of thuggery.

Earlier this year, the site of the multimillion dollar Burswood development in Perth was closed down after a fracas when McDonald’s union meeting ran over time. It was the Cole commission that first exposed the power of Reynolds and McDonald in the Perth construction industry. The commission’s finding in relation to the union power in the building and construction industry held that, among other things, members of the CFMEU, including Kevin Reynolds and Joe McDonald, engaged in unlawful conduct, there was disregard by the union of contractual agreements and the views of employees and the union abandoned the rule of law.

In coming to a conclusion, I refer again to Paul Kelly’s article on Saturday where he warned about the powers the unions will have and confirmed that the Rudd govern-ment, in turbulent times, is reframing workplace relations completely and giving more power back to the unions. It states:

The global crisis means everything has changed: the budget goes into deficit, fiscal stimulus replaces fiscal restraint, the Reserve Bank does a volte-face and begins to slash interest rates, and the Government guarantees deposits as Rudd declares the crisis is ‘sweeping across the world’.

But standing immovable is Labor’s support for greater trade union power, more costly restrictions on employers, a greater role for the revamped … commission, an effective end to individual statutory contracts, a revival of arbitration, and a sharp weakening of direct employer and non-union employee bargaining.

The article goes on to state:

The … model … is a significant step into the past—

and I reiterate ‘past’—

It is hard to imagine how its impact will be other than to weaken productivity and employment.

The core of this legislation is that it must maintain the productivity and flexibility which have given Australia a stellar performance economically. (Time expired)

Jim Turnour (Leichhardt, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to support the Fair Work Bill 2008—legislation that delivers fairness and flexibility, that will lead to increased productivity in the workplace and that sensibly balances the interests of Australian workers and businesses.

In the lead-up to the election last year, Labor crafted a new industrial relations policy titled Forward with Fairness, a policy firmly anchored in the Australian value of a fair go. This legislation interprets Australian values and enshrines them within the context of the modern Australian workplace relations system. The bill delivers a safety net of minimum conditions that cannot be stripped away; enterprise bargaining in good faith that will drive innovation and productivity, benefiting the Australian economy; protections from unfair dismissals for all employees; a right to representation in the workplace, including union representation; and a chance to better balance work and family life, particularly for low-paid workers.

This legislation delivers on Labor’s commitment to introduce fairness and flexibility into the Australian workplace, the commitment we made to the Australian people at the last election. It highlights the stark difference between the Rudd government and the Liberal-led opposition. We fundamentally believe in different things: Labor in a system centred on collective bargaining and the Liberals in a system centred on individual contracts.

Unlike the opposition, the Rudd government delivers on its promises. We do what we say we are going to do, in contrast to the opposition, who say one thing and do another. The Leader of the Opposition may say that Work Choices is dead, but you would not believe it listening to opposition speakers today. The opposition fought for and still be-lieve in an industrial relations system built on individual contracts—a dog-eat-dog, law of the jungle system where there is a race to the bottom on wages and conditions, a system anchored in the unrestrained market cap-it-alism that gave us the global financial crisis, a system where contracts are meted out, not negotiated and where there is only work and profits, not work and family. This is the in-dustrial relations system the Liberal Party bel-ieve in; it is in their bones. The Work Choices snake is not dead; it has just shed its name like a snake sheds its skin. It is still alive and well, slithering, hissing and ready to rise up and strike working families again if the Liberal opposition are elected to government.

I spent many days in the lead-up to the last election talking about Work Choices and workplace relations to people in their offices, workshops, shipyards and many other workplaces and obviously in their homes while out doorknocking. I remember a young truck driver I met while doorknocking at Edmonton, south of Cairns. He had signed an AWA. He was married with two kids, and although his hourly rate of pay had increased slightly he was worse off. When he worked longer hours he received no overtime or penalty rates, so his employer was now working him longer rather than putting on another driver. The end result was that he saw his family less. He was tired and angry and he did not know what to do.

There was the female migrant cleaner who had been given an AWA to sign by a government contractor. The AWA did away with all of her overtime, penalty rates and any control she may have had over her roster. The employer could call her in at short notice for a few hours work, roster her on split shifts and vary her hours enormously from week to week. She did not want to sign but did not want to lose her job. She did not know how she would manage her work and fam-ily responsibilities under this new system. There was no real clarity about what pay increases, if any, she would receive in the future, but in the end she needed a job and she signed the AWA. I spoke to many people in my electorate who were in similar sit-uations, and they came out in strength last year and voted for a new government—the Rudd Labor government. This was life as people knew it under the Liberal’s so-called Work Choices. You certainly could not choose family if you were a low-paid worker under Work Choices.

Similarly, small businesses were confused by the Work Choices laws. They do not have HR departments and work very closely with their employees. Work Choices gave them greater power over their employees but it meant that they were competing with other businesses not just on products and services but on wages and conditions too. Many found this very uncomfortable. The system effectively encouraged many businesses to cut wages and conditions—and they did. The processing of AWAs became chaotic following the introduction of the so-called fairness test. Many businesses found that they were underpaying their workers and were liable for thousands of dollars in back pay. Small business became weighed down in uncertainty and bureaucracy under Work Choices.

The Australian people rightly rejected Work Choices at the last election and, in the process, the Howard government. The Rudd government recognised this and, as one of our first acts of parliament this year, introduced the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, which began the process of phasing out the Howard government’s unfair workplace relations laws in favour of a fair and more flexible system. The Fair Work Bill further delivers on our commitment to establish a fairer, more flexible industrial relations system to drive productivity growth in the Australian economy.

At its heart is a new framework for collective bargaining at the enterprise level. We are returning the safety net to the Australian workplace and developing a new, modern award system. The Rudd government is committed to ensuring collective bargaining is again the cornerstone of the workplace relations system. Low-paid workers have not historically had access to the benefits of collective bargaining, but that will change under this bill. I heard the member for Charlton eloquently speak about this in a private setting. He is in the chamber now. I congratulate him, the former national secretary of the ACTU. He is a fantastic member of parliament. I know he has done a lot of work in this area. I agree with him: one of the great things about this legislation is providing low-paid workers—people like the cleaner and the truck driver I spoke about earlier—access to collective bargaining. The introduction of the Fair Work Bill will enable facilitated bargaining for these low-paid workers.

Fair Work Australia will play an important role in protecting the rights of many low-paid workers in the cleaning, childcare, retail and hospitality industries who have not been able to collectively bargain effectively in the past. Parties will be required to bargain in good faith. Good faith bargaining is about a willingness of parties to meet and discuss, to reach an accord on proposed new contract terms. It encourages parties to communicate openly and to focus their negotiations on key issues. Under Work Choices, there was no requirement to bargain in good faith. The employer quite simply could ignore their employees’ request to bargain, even when a majority of workers wanted a collective agreement.

This will change. When this bill is enacted, if a majority of employees wish to collectively bargain, their employer will be required to bargain with them. The Fair Work Bill sets out a bargaining framework that is premised on good faith bargaining. We know most workplaces already bargain in good faith, without any intervention. But in the event this does not happen, action will be taken. There are penalties for parties that do not bargain in good faith after being ordered to do so. The bill empowers Fair Work Australia to make orders to ensure compliance with the good faith bargaining requirements. Employees will also have the right to be represented by a union as part of this process, even if there is only one union member at the workplace. If you choose to join a union then you should be able to be represented by that union. Fair Work Australia is empowered to ensure that everyone bargains in good faith.

Fair Work Australia will oversee the Rudd government’s new industrial relations system; it will be our new industrial umpire. Fair Work Australia will be an independent, statutory body with a range of functions and powers, including facilitating collective bargaining, approving enterprise agreements, adjusting minimum wages and award conditions, dealing with unfair dismissal claims, dealing with industrial action and settling workplace disputes. Fair Work Australia will bring together seven existing agencies and integrate service delivery.

Work Choices created excessive red tape. This bill simplifies the system, creating a one-stop shop for all workplace relations issues. The benefits are obvious. Take small bus-inesses, for example. They do not have the time to spend numerous hours on staffing matters, on working through the many rules and regulations or on learning the ins and outs of workplace relations laws, and they cannot simply refer matters to their HR departments. This bill creates a simpler system, and Fair Work Australia will create a one-stop shop for employers, employees and unions.

The Fair Work Bill also returns unfair dismissal protections to all Australians. Under Work Choices, workers had no protection from unfair dismissal laws if the business em-ploying them employed fewer than 100 people. If the business was larger, people could still be dismissed for so-called operation-al reasons. The Fair Work Bill ensures that all employees have protections but recognises the special needs of small business. I have many small businesses in my electorate. Em-ployees will have to work for a small business for longer than 12 months to qualify for unfair dismissal protections. An employ-ee can still be dismissed, but the employer will need to follow the simple fair dismissal code. This affords workers protection from un-fair treatment and allows businesses to manage underperforming staff. The code makes it clear that an employer has the right to dismiss an employee without notice for ser-ious misconduct. The process for Fair Work Australia to deal with unfair dismissal will be streamlined and simplified. The Minister for Small Business, Independent Contrac-tors and the Service Economy has consulted widely on the fair dismissal code, and it has been well received by employer organisations.

There are many other features of this bill, but my time today is limited. The government has consulted widely on this legislation, and the Minister for Employment and Workplace Relations and Deputy Prime Minister is to be congratulated. Industry and union leaders have recognised this in their comments, which have generally been supportive. Heather Ridout, from the Australian Industry Group, said:

Look, it’s been a long process, it’s been a difficult, testing process, diametrically opposed positions between us and the unions on critical parts. The Government handled it professionally, listening to both sides, putting important protections, and kept a number of protections out of the Work Choices in the new bill.

Sharan Burrow, the ACTU President, said:

People voted out a system of individual contracts, Australians don’t want an environment in their workplaces where their rights are attacked. This legislation turns the tide on a decade of attacks on workers rights, it gives them back the fundamental decency that ought to exist in a work place to stand with and for each other, to bargain collectively, get a fair deal, and most employers, most employers, who never left a bargaining system who have respect for their workers, know these are a fair set of rights.

I know many members in the caucus also worked on this legislation with the minister and Deputy Prime Minister, and I want to congratulate them on their work and on the consultations they had with the broader caucus.

The Rudd government are striving to achieve a strong and productive economy. We believe we do not have to strip away wages and conditions to achieve effectiveness and efficiency in the workplace or in the Aust-ralian economy. John Howard’s legacy was a bureaucratic, complex, unfair industrial relations system. His legacy was Work Choices. But the Rudd government is committed to creating a fair and flexible employ-ment relations system. Cost of living pressures are already hurting many families and individuals. The global financial crisis is only increasing those pressures. In these troubled economic times, all Australians will benefit from certainty and from fair workplace relations laws. People want a fair go in the workplace. That is what this bill delivers.

Greg Combet (Charlton, Australian Labor Party, Parliamentary Secretary for Defence Procurement) Share this | Link to this | Hansard source

It gives me a great degree of personal satisfaction to speak in support of the Fair Work Bill 2008, given my personal history. I was the Secretary of the Australian Council of Trade Unions for most of the period during which the Howard government was in power and experienced firsthand, in the representation of many working people around the country, the impact on working people of not only Work Choices—the Howard government’s legislation introduced following the 2004 election—but also the legislation that was introduced in 1996 and in subsequent years during the period of the Howard government. This bill signifies a number of important things: firstly, the end of Work Choices and, secondly, the keeping of faith with the Australian electorate by the Labor Party in ending Work Choices and introducing legislation which represents decent and fair rights for working people.

The Fair Work Bill represents a huge improvement in the rights of the working people of this country and a tremendous step forward in respecting fundamental values of fairness, justice and decent treatment. It also, however, represents very significant economic reform. For the first time, in real effect, this legislation will bring into place an effective national system of industrial relations regulation for the private sector. Subsequent to this the government will engage in further dialogue with the state governments concerning their approaches to the development of a comprehensive national industrial relations system. The Fair Work Bill is a monumental step forward in economic efficiency and economic reform in overcoming more than 100 years of multiple industrial relations jurisdictions, with the complexities that that generates, and implementing a simpler and more flexible national system. That is long overdue. Most businesses in this country are operating strongly in a national and oftentimes international context, and a national system of regulation is very important.

The bill also signifies a far better balance of the rights and responsibilities between employers and employees in workplaces around this country. I was a union official for over 20 years and have experienced workplaces in many different industries around the country, representing people and working with business. Particularly with that background, I have always felt it extremely important that there be in the industrial relations laws of this country a proper balance of the legitimate interests of employers and business with the legitimate interests of employees and their rights to representation.

Oftentimes, ideology and politics take too great a hold in casting the balance of the interests of employers and employees. There is no better example of that, though, than in Work Choices. It swung the pendulum far too much one way, which was the reason it was rejected by the Australian community at the last election. I think the Fair Work Bill 2008 strikes a far better balance—an important balance—between the legitimate interests of employers and employees.

Finally, what I think is significant about the Fair Work Bill is that it is a tremendous victory for all of those in the Australian community who believe in fairness, justice and decent treatment for working people. These fundamental values are deeply entrenched in the Australian community and for good reason. Work Choices so offended those values that people rejected it at the ballot box at last year’s election. Ending Work Choices and implementing the Fair Work Bill represents a victory for those values and for those who believe in those values in our community.

What are some of the key elements of the bill that represent these values? Firstly, it is important to recognise that from a constitutional standpoint this bill no longer relies upon the conciliation and arbitration power of the Constitution. That head of power had underpinned the industrial relations regulation enacted by this parliament for over 100 years. This legislation, however, is based on the corporations power of the Constitution—and that is not just an idle legal observation; it does lead to a significant change. I have already referred to the nature of economic reform represented by the bill in the terms of the development of a national system. This has been brought about by the utilisation of the corporations power and the acknowledgement, in the Work Choices High Court judgment, of the capacity of the parliament to rely upon that power. Having a national system is a historic shift, and it changes the nature of the operation of the federal industrial relations system in particular.

We have had a system that relied for many years upon the thinking that ambit industrial disputes had to be created on paper on an interstate basis in order to generate the jurisdictional power of the industrial relations tribunal to create awards, deal with disputes and certify things such as enterprise agreements. That type of constitutionally driven artifice in the federal system will no longer be necessary, and it is a welcome improvement in the efficiency and operation of the system. But I think one of the critical elements represented by this bill is the improvement and the security of the safety net that will underpin the labour market. There is a set of legislated National Employment Standards. There are 10 such standards, complemented by a modernised system of awards which also can contain an additional 10 employment items. What this means is that there will now be 20 minimum conditions comprising the safety net, versus five under the Work Choices system.

The system brought about by Work Choices generated the opportunity for employees to have their pay and employment conditions diminished once they entered into an instrument such as an Australian Workplace Agreement. This is what drove the cuts in take-home pay for many of the employees who, one way or another, were encouraged or coerced to sign an Australian Workplace Agreement, with the consequence that they lost their penalty rates, meal allowance, rest periods, annual leave loading or a host of other employment conditions put at risk by Work Choices.

Under the Fair Work Bill, when bargaining in the labour market and in the workplace an employee must be better off overall than the minimum standards comprising the safety net. That is, it is still going to be possible under the Fair Work Bill to negotiate over things such as penalty rates. However, if, in doing so, an employee agrees to forgo their ordinary hours of work plus penalty rate types of arrangements in lieu of an alternative type of arrangement such as an annualised salary, the employee cannot be diminished in their take-home pay and their overall entitlements. They must be better off overall. That was one of the serious deficiencies of Work Choices that led to serious disadvantage for those who were most vulnerable in the labour market. The Fair Work Bill remedies that problem and ensures that employees must be better off in the bargaining context by having a secure safety net.

Additionally, minimum wages are to be reviewed each year and any increases are to apply from 1 July. That is an important change. I was responsible, for example, at the ACTU, for the oversight and strategy of the national wage case for approximately one decade, and there was never a guarantee that minimum wages would be reviewed each year. The ACTU had to struggle, oftentimes, to have a minimum wage case brought on so that lower paid people could keep pace with the changes in the cost of living and improvements in productivity and share in national wealth in a fairer way. This bill ensures that there will be an annual review. Importantly, it also ensures, in the context of the safety net, that when there is a transmission of business—for example, in some circumstances, the sale of a business or part of a business—no artifice can be used, as was possible under Work Choices, to diminish or eliminate the employment arrangements and the wages and conditions of the employees. It puts a solid safety net under transmissions of business.

The other key element that is very important in the Fair Work Bill is the operation of the collective bargaining system. It is a collective system. It is not an individual contracting system. It is commensurate with the government’s commitments under the ILO conventions for collective bargaining and freedom of association. Importantly, the collective bargaining system is based upon a simple democratic value: when a group of employees, by majority, decide, if it is necessary, that they would like to collectively bargain with their employer, the Fair Work Bill resolves that the employer will have an obligation to negotiate with those employees in good faith.

Under Work Choices, every single employee in an enterprise could have resolved, could have signed a petition, could have made representations to the employer that they wished to collectively bargain, but under Work Choices the employer could simply say: ‘I have no interest in that and, by the way, you’d better sign this individual contract. But I will not collectively bargain with you.’ That sort of situation, which is inherently unfair, disrespectful and undemocratic, is overcome in the Fair Work Bill by the requirement that, if it is necessary, the employees’ attitudes—whether they are union members or not—be ascertained as to collective bargaining. If a majority wishes to proceed on that basis then the employer will have an obligation to do so.

Another very important change in the legislation concerns freedom of association and implements Australia’s commitments under ILO conventions to freedom of association. The bill ensures that, if an employee makes a free decision to become a member of a union, the employee also has a right of representation, if that is their wish, and that an employer will have an obligation to respect that decision and the right of representation. Additionally important are the changes to the unfair dismissal arrange-ments. The previous legislation, which was brought in at the time the current Deputy Speaker, Mr Andrews, was the minister, involved the abolition of unfair dismissal protection for employees and enterprises with fewer than 100 employees. That represented the abolition of that protection for approximately four million people in the economy.

This legislation ensures proper protection of the interests of small business, as defined by employing fewer than 15 employees, and proper unfair dismissal protection for all employees in the workforce. There will be a qualifying period for employees in small businesses of 12 months and a qualifying period for employees in larger businesses of six months. There is also, of course, a streng-thened role for the independent umpire, to be known as Fair Work Australia, and additional protection in part 2-4—the enterprise agreement section of the bill—clauses 241 to 246 in division 9 that provides the opportunities for low-paid employees to bargain on a multiemployer basis and, in appropriate public interest circumstances, to access arbitration, in recognition of the fact that they have a weak bargaining position in the labour market. That is an important protection for many women, non-English-speaking workers and young people, as well as many others in the labour market. That is an improvement in this legislation over all previous systems in the last 15 to 20 years.

There are concerns that have been expressed, of course, about shortcomings in the bill. They have been expressed by the business community or some representatives of it and some of my former colleagues in the union movement. But I think this bill is very strong in its fundamental protection for em-ployee rights and it is very important that it be broadly supported in the community. Certainly I will be a strong advocate of it. It overcomes a lot of the flawed, biased and unfair processes and failures to protect various rights in the Work Choices legislation. It was in response to those failures in Work Choices that, as ACTU secretary, I resolved to campaign, along with my colleagues, very hard against Work Choices to ensure that improvements in rights were made.

I would like to make a couple of observations about the Your Rights at Work campaign, because it undoubtedly influenced politics in recent years, and I do not think too many would argue with the contention that the Your Rights at Work campaign had an influence on last year’s election outcome—because people were opposed to the Work Choices legislation. The Your Rights at Work campaign involved many thousands of people. It was conducted in workplaces, in community organisations, and in partnership with churches and many other community interests. Some of the largest rallies since the Vietnam War were conducted and broadcast across the country through the Sky Channel. There was community campaigning, television advertising, internet campaigning in an innovative way and marginal seat campaigning and, of course, significant funds were raised. Many people contributed to it in a significant way. I would like to acknowledge one of my closest colleagues at the ACTU, George Wright. We worked very closely together coordinating much of the campaign over the period from 2005 to 2007. Hundreds of thousands of people were involved.

The Fair Work Bill represents a tremendous victory for their belief in fairness, justice and decent treatment for our people. But I believe, also, it represents a significant victory for our democracy. These last few years have demonstrated that, at the end of the day, when legislation such as Work Choices is enacted by a government and offends those values of fairness, justice and decent treatment so profoundly, not only are those values strong and alive within our community but people are prepared to act upon them. It has demonstrated that in our democracy, it is possible to influence results, it is possible to change governments through the ballot box and, ultimately, it is possible to see a policy that was enunciated during the election campaign by Kevin Rudd and Julia Gillard on behalf of the Labor Party put into effect. That is what the Fair Work Bill represents. I believe it to be a victory for fairness and justice in our community.

Steve Irons (Swan, Liberal Party) Share this | Link to this | Hansard source

I rise to talk on the Fair Work Bill 2008. As the Leader of the Opposition said last week, the coalition will not oppose the government’s Fair Work Bill 2008 as we believe the Rudd-Swan government has achieved a mandate for its industrial relations reforms. However, we do have concerns with the consistency of the government’s message over the last two years and the government’s ability to implement this legislation in the current context of a global financial crisis, given its current poor record of economic management.

Industrial relations has always been a controversial topic in Australian politics and has often been associated with tit-for-tat responses by alternate governments. On 20 November 2007, the Prime Minister, then the opposition leader, said that working families hated Work Choices and AWAs and they wanted to get rid of them. This was a view replicated by Gary Dunbier of the New South Wales Teachers Federation, who said, ‘The Howard government’s Work Choices represents the most pernicious legislation we have ever encountered.’ However, on this day, last year, Ross Gittens wrote in the Sydney Morning Herald that economists ‘will be sorry to see the retreat from Work Choices’. An article in the Sydney Morning Herald on 25 November stated:

Meanwhile, the mining industry is already railing against the draft workplace laws.

Miners say the legislation is more about resuscitating an ailing union movement, not improving business conditions and job prospects for ordinary Australians.

A paper prepared by Michael Thompson and the CSIRO in August 2002 entitled A history of recent industrial relations events in the Australian building and construction industry also showed the controversy surrounding industrial relations. Michael Thompson’s report shows a transformative period in industrial relations between 1974 and 1987. During that period the BLF was deregistered under Commonwealth legislation and consequently amalgamated into the state branches of the CFMEU. The accord agreement required union leaders to deliver wage restraint, to hold back excessive rises in wages and to maintain historical relatives, consequently holding down inflation. The ACTU’s amalgamation policy was based upon the idea that there would be 20 superunions covering broad categories based on industries. This is close to what we see today, with large unions that cover entire industries such as the Construction, Forestry, Mining and Energy Union, the metal workers union and the Maritime Union of Australia.

Legislative provisions in the Industrial Relations Act 1988 diminished the role of awards and allowed for enterprise bargaining agreements. However, very few agreements were certified under this system because of the infrequent approval of agreements by the Australian Industrial Relations Commission. During the late 1980s, unions began developing collective agreements as part of a rationalisation of industrial relations in the building and construction sector. The period from 1990 to 2002 saw a shift in industrial relations with the Workplace Relations and Other Legislation Amendment Bill 1996. The bill limited the award system to a safety net of minimum wages and conditions, allowing individual businesses and workers to negotiate everything over and above that safety net. The bill protected freedom of association and included provision for individual agreements. To get the bill passed through the Senate much of the content was watered down, but the substance of the bill was largely preserved in the act.

The coalition accepts that the Rudd-Swan government have a mandate for workplace relations change following the federal election last year. However, that mandate is conditional on the election manifesto that the ALP sold to the Australian people. The failure to meet election promises has been a disappointing if not entirely unexpected characteristic of the government, and the Fair Work Bill 2008 is no different. It is important that the Australian people understand the reason why the Rudd-Swan government have deviated from their election policies—that is, to appease the union movement. The Minister for the Environment, Heritage and the Arts was obviously accurate when he said during the election campaign last year that the Labor Party would change it all if they were elected. The Labor Party were elected, and this bill demonstrates that they have changed it all.

The Deputy Prime Minister consistently assured the Australian people that a Rudd-Swan government would not bring back compulsory arbitration. In a speech on 30 May 2007, the Deputy Prime Minister said:

Under Labor’s policy there is no automatic arbitration of collective agreements. Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

Yet this bill legislates for a return to compulsory arbitration. The Deputy Prime Minister also assured the Australian people there would be no pattern bargaining under a Rudd-Swan government. On 30 May 2007, the member for Lalor said:

Pattern bargaining is a term used to describe bargaining across the whole industry. That’s not what Labor’s policy is about.

On 9 November 2007, the Deputy Prime Minister made the ALP pledge clear and said:

Under our system, there will be no pattern bargaining.

Yet this bill subtly provides for pattern bargaining. We were also promised before the election that there would be no change to the rules that governed how union officials could gain entry to workplaces. On 28 August 2007, the Deputy Prime Minister said:

We will make sure that current right of provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

Again there has been a subtle change. As the Member for Stirling said in his speech, unions will now be able to gain access to non-union-member records, get a privileged seat at the bargaining table and enter a vastly expanded number of workplaces. This legislation will allow unions to re-enter workplaces where employers and employees have previously agreed that unions were unwelcome. The Rudd government have shown themselves incapable of restraining the union influence in their party and incapable of keeping their election promises to the Australian people. The coalition will not prevent the Rudd government from implementing the policy they took to the election in 2007. However, the Senate will carefully consider this bill and the coalition will propose sensible and productive amendments. I want to put on record that I am very concerned about the impact of this bill on jobs and job creation in the midst of the global economic crisis.

Between March 1996 and November 2007, the Howard government created more than 2.2 million jobs—1.2 million of these jobs created were full time and almost 950,000 were part time. The unemployment rate in Australia was 4.3 per cent in October 2007, a 33-year low. In the year to February 1991, the retrenchment rate was 6.5 per cent, falling to 4.6 per cent in the year to February 1996 under the Labor government. The retrenchment rate fell to 2.2 per cent in the year to February 2006. It is important to remember the economic situation before the coalition government. In December 1992, under Labor, the unemployment rate peaked at 10.9 per cent, leaving almost one million Australians unemployed. Not one of the 77 ABS regions recorded a double-digit unemployment rate in June 2007; in March 1996 there were 24 that did. We will take no lectures in economic management from the Labor Party. These statistics remind us that Labor governments invariably preside over economic disasters. The Labor Party’s poor response to the global financial crisis makes me concerned that they are not capable of implementing industrial relations legislation and safeguarding Australian jobs.

On 25 November, Julia Gillard, the Deputy Prime Minister, rose in this place to speak on the Fair Work Bill 2008. In her speech the Deputy Prime Minister mentioned that the Rudd Labor government was delivering on the promises Labor made to the Australian people during the 2007 election campaign. As the Deputy Prime Minister stated, Labor delivers on its promises—but it also goes further. The bill deviates from the election promise in order to appease those to whom Labor owes its biggest election debt—the unions. The Deputy Prime Minister promised no compulsory arbitration, but now we have seen it introduced. It is not part of the mandate. The Deputy Prime Minister promised no pattern bargaining. Now that is also back in—again, not part of the mandate. This has been stealthily snuck in through the back door, and the Deputy Prime Minister hoped no-one would notice.

It was promised that rules for unions getting entry into our workplaces would stay the same—another sham, and again we have seen the sleight-of-hand approach taken. Unions get access to non-union-member records and a privileged seat at the bargaining table. They can even enter workplaces where the employer and employees have previously agreed that they do not want unions. They can come strolling back in as this legislation unlocks the doors of virtually all our workplaces. I heard the member for Leichhardt state that businesses are confused. Well, they will be when the unions start jackbooting their way through the door. Whatever happened to the expectation of privacy of both the individual and the employer? In the case of an employee not wanting his records viewed by the unions, the employee cannot request this. His privacy rights are overridden by the fact that the union can view his records to prove that there is no discrimination in the workplace. The union supposedly cannot use the information gathered for any other purpose than what it gathered the information for, but I am sure they will come up with a list of as many items as they see fit and then use that information as they like. The Workplace Ombudsman, who is there to protect employees from misuse of their information, would have a hard time proving misuse by the unions. This is just another free kick for union power and increasing their stranglehold over the workplace. I remind you, Mr Deputy Speaker, that this was not in the election promises.

The Deputy Prime Minister goes on to talk about the Harvester judgment with reference to fairness in industrial relations and states that this was part of the new Australian Federation that would make Australia different to other nations such as the United Kingdom and the United States of America. Our new Federation would ensure that we did not have the wide social inequalities that the Deputy Prime Minister insinuates exist in the countries previously mentioned. What the Deputy Prime Minister failed to mention is that, as stated by Ray Evans in the Age on 15 November 2007, there are a number of points that need to be made about the Harvester judgment. He started his article by saying:

JULIA Gillard’s comments at the centenary celebrations of the Harvester judgment of 1907, handed down by the then president of the Arbitration Commission, Henry Bournes Higgins, and Paul Keating’s spray in The Age on 13 November 2007 show that it is difficult for Labor politicians to understand just how much long-term damage was wrought by H.B. Higgins, Alfred Deakin and Billy Hughes, as they combined wage regulation with tariff protection in the Arbitration Act of 1904 and the Tariff Act of 1906.

But here we have our Deputy Prime Minister applauding this judgment, along with ALP members who have mentioned the Harvester judgment in their speeches previously. The points that Evans made were that the Harvest judgment ‘decreed a minimum wage of 42 shillings a week for unskilled labourers’ and that the judgment:

… was soon overturned by the High Court, which found that the Excise Tariff Act of 1906, which Higgins had presumed gave him the legal authority to make his award, was constitutionally invalid.

The High Court’s intervention was indeed for-tunate for the unskilled worker upon whom Higgins had bestowed a huge mandatory increase—

of 27 per cent. Evans goes on to say:

If that increase had remained a legal requirement in 1907, then a sharp increase in unemployment, particularly among the unskilled, would have followed soon after; just as we saw a sudden and disastrous increase in unemployment that followed the 1981-82 increases of similar magnitudes in the metal trades awards.

If there is one thing history teaches us, besides the fact that there is no such thing as a temporary deficit under a Labor government, it is that Labor will make decisions on ideology and let the Australian public bear the consequences, which are often not thought out. Ray Evans went on to say:

But whether regulation is to be imposed by Ms Gillard … or by trade union officials, is a second-order effect. The—

primary—

problem is the innate incapacity of the regulators to stop regulating. And every time a new regulation is promulgated, the capacity of free individuals to make decisions in their own best interests is diminished, and the huge social benefits that come from such unregulated activity are lost.

The collapse of the Soviet Union should have made it clear to everyone that centralised planning and control do not work.

At the end of the day the judgment of this bill will come from the flow-on effects of this new legislation on employment—or should I say unemployment? The small business owners of Australia will vote with employment statistics, and the workers of Australia will line up at Centrelink. This legislation will not improve employment, but I think we will see a decline in the employment of people by small business in Australia. As I said in a previous speech, the small business people of Australia will do what they always do when anti-job regulations are foisted upon them—they will do what they are great at—and that is that they will work harder and longer. I invite all businesses in my electorate of Swan to provide feedback to my office on the effects of this legislation on their businesses as it comes into effect.

Stuart Robert (Fadden, Liberal Party) Share this | Link to this | Hansard source

Thank you, Mr Deputy Speaker, for the opportunity to speak upon the Fair Work Bill 2008. I acknowledge the member for Charlton, a previous secretary of the ACTU, at the government bench this morning. The coalition accepts that the Rudd government have a mandate for workplace relations change, as they proposed in their election policy last year. The coalition accepts that Work Choices is indeed dead; the Australian people have spoken. We acknowledge that industry stakeholders have supported many key elements of the bill. All of that is fact. We acknowledge that the matter of individual statutory agreements was dealt with earlier this year in the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, and we have been advised by industry that the government’s changes to provide individual flexibility in awards and agreements are indeed sufficient. All of that is fact—it is acknowledged—and on that basis the coalition will not oppose those changes. In totality the coalition will not oppose the government’s Fair Work Bill in the House, but clearly we reserve our right to propose amendments to improve the operation of the bill, as we would with any other bill that moves through the parliament, following a standard Senate committee process—clearly, though, without seeking to frustrate the government’s election commitments in its implementation of its Forward with Fairness policy.

History is a great teacher. The government is often heard speaking about the mining boom and the resources that flowed into the government coffers as a result. It is an inconvenient truth, though, that when the mining boom began the world had generally low stockpiles of resources, a very low exploration rate—in some cases over 15 years of neglect of exploration—and a sharp peak in demand. Purchasers of raw materials could have gone to any number of places across the globe to purchase raw materials, but fundamentally they chose Australia, for a range of reasons. One of them was that our industrial relations framework was, principally, flexible and allowed a range of behaviours to occur to maximise productivity. It made Australia a great place to purchase from, in contrast to other countries such as Brazil.

Changes to the unfair dismissal regime under the Howard government, from which small businesses with fewer than 100 employees were exempt, meant that small businesses would give Australians a go. Where they were unsure about the professional standing, the capacity, the education, the qualifications, the fit of a person, they would give them a go. All of this led to some amazing changes in the Australian economy. Between March 1996 and November 2007, more than 2.2 million jobs were created. That is a fact. Of these, 1.2 million jobs were full time and almost 950,000 were part time. Indeed, between the introduction of Work Choices and November 2007, 438,600 additional jobs were created. There are currently well over 10.6 million Australians in work, a record high.

A debate on industrial relations cannot occur in the absence of the facts about what the previous government’s regime implemented. The unemployment rate in Australia was 4.3 per cent in October last year—a 33-year low. It had been below five per cent for 21 consecutive months. In contrast, in December 1992, under Labor, the unemployment rate peaked at 10.9 per cent, leaving almost one million Australians unemployed. Long-term unemployment in August 2007 was 66,700. It was slashed by almost two-thirds under the Howard government, and that was 79.8 per cent lower than the peak under Labor in May 1993 at a seasonally adjusted rate of over 329,000.

Australians were given a go. The industrial relations framework in the country allowed for employment to be soaked up. The ABS national account figures highlighted that real wages have increased by 2.4 per cent since the introduction of Work Choices, and there was a 20.8 per cent increase in real wages under the coalition, compared with a 1.8 per cent decrease under Labor. Australians had much to celebrate for the 11½ years of the Howard-Costello reign, and they have much to fear from the changes coming through under this workplace relations legislation.

The government’s change comes at a very difficult time for the Australian economy. We take the government on trust that changes have been carefully considered and will not cost jobs. My only concern is that we took the government on trust with their unlimited bank guarantee, which we warned them against, that subsequently distorted financial markets. We took them on trust that wholesale term guarantees were not needed for banks, and of course they have backflipped and now put them in. We have taken the government on trust before, and it has come to grief. This is not a time when such moves can be imposed without the luxury of a strong economic buffer and robust business conditions such as those that existed under the Howard years. The Howard government’s ability to get people into jobs and keep them there is without qualification and without peer. It managed and created prosperity and growth, with an increase of over 20 per cent in real wages. The danger is that this may already be being squandered by this government.

We are gravely concerned that this bill, in setting the industrial relations framework back years, will have a significant impact on jobs. It will have a significant impact on job creation and particularly on economic certainty. The opposition will continue to focus on jobs. I note the government’s budget in May forecast 134,000 unemployed. Its Mid-Year Economic and Fiscal Outlook increased that to over 200,000. The question for the government is now: what is your current unemployment figure? How many more jobs will be lost? I am especially cognisant of job loss, in that one of my suburbs, Helensvale on the Gold Coast, has the highest rate of mortgage default by value, at 30 days in arrears, of any suburb in the nation: 7.78 per cent of homeowners in my suburb of Helensvale are 30 days behind on their mortgages. That is a tragedy. What would be worse is if, under this regime, they lost their jobs. Regardless of whether interest rates come down or not—although that is clearly welcome—if you do not have a job, you are unable to meet your budgetary requirements, such as your repayments on cars and houses. In a suburb like Helensvale, the result would be disastrous.

The coalition believes that, within this government’s new workplace relations framework, union accountability must be maintained and unlawful behaviour must be penalised. I am aware that the Deputy Speaker ruled that the use of the term ‘hypocrisy’ was unparliamentary and not to be used in the chamber. I will avoid the use of the word ‘hypocrisy’ and instead rely on ‘duplicity’: saying one thing but indeed meaning another. It comes as no surprise to any Australian that this bill substantially deviates from election promises. It can only have done so to appease those to whom Labor owes its largest and most profound election debt. The member for Charlton, who is at the table, would know exactly whom I am speaking about: the union movement.

Minister Gillard promised there would be no compulsory arbitration. She made it very, very clear on 30 May 2007 in a speech to the National Press Club:

Under Labor’s policy there is no automatic arbit-ration of collective agreements.

On 3 September 2007, the now Deputy Prime Minister said:

… we’ve said in our policy, that there are a very limited number of circumstances where you need the industrial umpire to step in … But in the ordinary course people who are collectively bargaining at their enterprise level, all of that bargaining will happen at the enterprise level, they will either strike an agreement or not strike an agreement.

On 17 September at the National Press Club, she continued:

Compulsory arbitration will not be a feature of good faith bargaining.

Yet, under pressure from the unions and, I am sure, under pressure from the member for Charlton, compulsory arbitration is back in. If that is not duplicitous then what is?

Minister Gillard also promised that there would be no pattern bargaining. She made the case again on 1 May 2007. She was asked by a journalist:

Pattern bargaining, is that actually going to be a reality under your policy?

And she replied:

That is completely untrue. Pattern bargaining in the sense of having industry wide action is unlaw-ful under Labor’s Forward with Fairness plans.

On 30 May she said:

Pattern bargaining is a term used to describe bargaining across the whole industry. That’s not what Labor’s policy is about.

On 14 June, in a speech to the CEDA State of the Nation Conference, she said:

The Minister and the Government will make all sorts of silly claims about Labor’s system.

That it’s about centralised wage fixing and arbitration—it’s not.

That it allows for pattern bargaining—it doesn’t.

On the Today show on 10 August 2007, Minister Gillard said:

The key claim in it is that Labor’s industrial relations system is somehow going to have pattern bargaining in it and we’ve said time and time again that’s simply not true.

Pattern bargaining is back in, Member for Charlton. It is back in by stealth. It was quietly ushered through the back door. It is back in because you made sure it was put back in. You made sure that no-one would notice. I suggest again that that is duplicitous: saying one thing and doing another.

We were promised that rules for unions getting entry to our workplaces would stay the same. Surprise, surprise! Minister Gillard said on 28 August in a joint press release with the Prime Minister:

Federal Labor will maintain the existing right of entry provisions.

It seems the duplicity continues to the high ranks of the Prime Minister. At a press conference on 28 August 2007 Minister Gillard said:

We will make sure that current right of entry provisions stay. We understand that entering the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

On 28 May 2008, in a speech to the Master Builders Australia industry dinner, she said:

We promised to retain the current right of entry framework …

Duplicitous: saying one thing and fundamentally meaning and intending to take the opposite approach—a sleight of hand.

If one union member in a workplace claims that they have not been paid the right amount or that someone on the other side of the lathe or the workshop or upstairs is getting paid more than they are, if one union member makes an unsubstantiated claim like that, it is classed as a breach and the unions will be able to come in and legally get access to non-union-member records. Duplicitous! Minister Gillard and the Prime Minister said on 28 August in a joint press release:

Federal Labor will maintain the existing right of entry provisions.

The word ‘hypocrisy’ comes from the Greek word ‘hypokrites’. It was a mask that an actor would wear to show that he was acting in some way that was different to him. It is interesting that Jesus used the word against the Pharisees. He also used the term ‘whitewashed tomb’—that is, one thing is shown on the outside and something fundamentally and completely different is on the inside. Given that the word ‘hypocrisy’ is unparliamentary, I will stay with ‘duplicitous’.

Even in workplaces where the employer and employees have previously agreed that they do not want unions, the unions can come strolling back in, as this legislation unlocks the doors of virtually all of our workplaces. This legislation will allow the unions to walk in and present the benefits of collective agreements. In fact, this entire bill revolves round collective agreements almost to the exclusion of all others.

In 1983, when the Hon. Bob Hawke took over as Prime Minister, the union movement was in its heyday. Something like 46 per cent of the nation was unionised. Now the number has reduced to under 25 per cent and for the private sector it is less than 14 per cent. A cynic might argue that this is simply a way for the union movement to once again try to reach the lofty heights of ascendancy. Without doing it by representing workers well and proving their value in the workplace, they are doing it through their political arm, the Labor Party, through legislation.

These are things that the Australian people did not vote for. The Australian people were expressly and explicitly told the exact opposite. They were told that many of these features would not be in any new legislation. It is ironic that secret ballots are now to be 100 per cent paid for by the government, whereas previously the union movement contributed one-fifth of the cost. The opposition have indicated that we will not frustrate the government’s endeavours to implement the policy it took to the election, but as we have stated the Senate has work to do and we reserve the right to propose sensible and productive amendments.

The test for this government is very simple: will this bill help put people in jobs or will it put them out of jobs? The test is very simple. To determine how effective the test is is also simple. In 12 and 24 months time we will be able to see whether more people or fewer people are in jobs because of this bill. Will this bill create growth or will it hinder growth? Will it strengthen the labour market or will it weaken the labour market? Does it promote freedom in the market or is it oppressive in the market? Does it support the freedom of the individual to negotiate with an employer or does it force that individual into a collective space controlled by the union movement? The test is simple. Marking that test in 12 or 24 months time will also be simple. This parliament will give it a tick or a cross; it will be a pass or a fail. The first KPI and the last KPI will be jobs.

These are the tests for the Prime Minister and the Deputy Prime Minister. These are the measurements of success or failure. Jobs will be the yardstick that the Australian people will use to measure the frontbench of this government. It is no longer a question of what the opposition is going to do or not going to do. The question is: will the government deliver on its pledge to create jobs, to promote industrial harmony or freedom? Time will tell.

It is interesting that since November 2007, when this government took power, strikes have increased in this nation by more than 800 per cent. There has been an 800 per cent increase in strike action. The Prime Minister would have the nation believe that that is a normal part of the argy-bargy of industrial relations negotiations. Yet during the Howard-Costello years strike action was the lowest in almost 100 years. It has rapidly spiked up by 800 per cent. I think even the most casual of observers would realise that that has nothing to do with the argy-bargy of industrial relations but everything to do with the union movement stirring and growing, grasping at the heels of the Labor government, searching for a relevance they could not find in simply representing ordinary workers and instead leaning on the Labor Party for legislation. The opposition will hold this government to account. The yardstick will be jobs, the measurement will be jobs and the failure of this bill will be the lack of jobs.

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Fair Work Bill 2008, which replaces the Howard government’s Work Choices legislation, which divided Australians, cut their pay and conditions, restricted their right to collective bargaining, froze their right to workplace representation and gutted the independent umpire. I note that the opposition has indicated that it is not opposing the bill, although I must say I have been listening to the debate today in the chamber and the level of Henny Penny cries of disaster about to fall on our heads in the speeches of all of those on the other side, who have indicated they are proposing to not oppose the bill, has been interesting. I notice a common theme is their concern about unemployment and their belief that the provisions of this bill may in fact increase unemployment. I simply say to them that, when it comes to the point in this country when fairness is a barrier to creating employment, I think we need to have a good, close look at ourselves. Fairness and balance in the workplace are not a barrier and should not be a barrier to creating employment.

The other issue that has been raised by speakers on the other side is the mandate that this government has from an election where, quite clearly, the workplace relations framework of this country was a major issue. There has been the recognition that we do indeed have a mandate to introduce this legislation, although many of them have then gone into some detail about aspects of this bill that they believe we do not have a mandate to implement. I simply say to those who have raised that point: where was the mandate for Work Choices? Not once did the former government take the Work Choices legislation that they proposed to introduce into this House and this country to the people.

Whilst it is quite right that the opposition will be looking to the Senate committee process to propose, as I understand, some amendments that they believe may improve the quality of the bill, I remind them that in fact they are privileged to have the opportunity to speak on this bill, because several people on this side of the House who were in opposition at the time—me included—were gagged on several occasions and did not even have the opportunity to address the bills before the House. Indeed, the Senate committee itself had the grand allocation of 24 hours to consider the previous legislation under the Howard government!

So I say to those opposite that I understand that there is a fundamental ideological difference between us about what constitutes fairness and balance. It is a debate that we have engaged in vigorously over the last 10 years, since the original 1996 bill of the former government, and it has been the topic of much debate in the community. In the election last year the community indicated where it, by and large in the vast majority, stood on the position of fairness and balance in our industrial relations system. I encourage those opposite to desist from the Henny Penny cries that the sky will fall in and the scaremongering around this bill and to encourage both employees and employers to see that applying fairness and balance to their workplace relationship will not be a barrier to employment and indeed should encourage employment. I think the vast majority of workers and their employers want that and understand that. It was their good common sense that created the support of the arguments that we were putting on this side of the House about a structure that would reflect fairness and balance.

I note that the editorial published in my local newspaper, the Illawarra Mercury, on 26 November 2008 had a bit of a run in this place over the last week or so. It summed up the feeling of people in our area regarding the Work Choices legislation very, very well. The editorial said:

Introduced by the Howard Government, it was loathed by workers, tilted in favour of the boss, drew thousands of complaints and resulted in hundreds of investigations into allegations of unfair, illegal and inappropriate working conditions.

In short it was a disaster and the death knell to the Howard years.

That is the voice of our local paper, reflecting the views of local people in my area. As a result, since coming to office, our government has dismantled Work Choices. On 28 March this year, the first piece of legislation introduced into this House under the new government abolished Australian workplace agreements. The government also introduced a real, genuine no-disadvantage test. This test ensures that no workplace agreement can disadvantage an employee. On 16 June this year the government released 10 national employment standards, which contain the minimum conditions every employee in Australia is entitled to receive. These include: maximum weekly hours of work, requests for flexible working arrangements, parental leave, annual leave, passionate and carers leave, community service leave, long service leave, public holidays, notice of termination and redundancy, and provision of a fair work statement.

The government has started the process of modernising and streamlining thousands of awards by focusing them on the basis of industry or occupation. These new, modern awards may also include up to an additional 10 minimum conditions of employment tailored to meet the needs of that particular industry or occupation. These industrial relations reforms and those included in this bill before us today usher in a modern national industrial relations system. These reforms are based on the principles which have always been the foundation of Australian industrial relations: balance and fairness. They were the principles that were violated by the Howard government and the Work Choices legislation.

The bill has been the subject of long and detailed consultations both before the election when we were formulating our policy position and in the actual drafting of the bill. The Deputy Prime Minister and Minister for Employment and Workplace Relations has consulted widely with employers, employees, trade unions and state and territory governments. I also recognise the contribution of many of my colleagues in this House, including the member for Charlton, who have played an important part in contributing to the development of this bill and also over the longer term through the Your Rights at Work campaign. I also want to take this opportunity to acknowledge the work of the local Your Rights at Work campaign organised by the South Coast Labour Council and its secretary in my own area, Arthur Rorris. On 30 November 2006, to show the level of concern that there was about the Work Choices bill, 7,000 local people marched in Wollongong in opposition to that legislation. This is a comprehensive bill covered in 600 pages. Work Choices was 1,500 pages of red tape and confusion that I know many employers in my local area struggled to understand and get their head around at the time. Even the Australian Chamber of Commerce and Industry in their media release dated 25 November 2008 said that ‘government consultation has made the bill easier to navigate’.

The bill has six chapters, including the objects and definitions, obviously; the terms and conditions of employment; the rights and responsibilities of employers, employees and organisations; compliance and enforcement; administration; and other minor matters. I am very pleased that this bill introduces fair and comprehensive employment conditions that cannot be stripped away. Awards will provide for an additional 10 conditions above the National Employment Standards to be determined by Fair Work Australia on the basis of industry or occupation. The key to the provisions in this bill is that workplace agreements must leave every employee better off overall than the applicable award. Every employee in Australia now has a concrete legislative foundation upon which their conditions of employment are guaranteed. No employer can strip away any of those 10 national employment standards. I am pleased the bill contains new, effective transfer of business provisions to ensure agreements cannot be evaded by employers leaving employees high and dry, a situation I saw on a couple of occasions in my own area. Awards will be reviewed every four years and annual wage adjustments will be based on criteria balancing economic and social factors. Common-law contracts, as they have always existed in Australia, can be agreed between employer and employee; however, the terms and conditions of these must be above and beyond the 10 national employment standards and applicable award.

I am pleased that the bill provides a new framework for fair enterprise bargaining. The Labor government pioneered enterprise bargaining in the early 1990s and those reforms led to increased productivity in workplaces and across industries and increased employment in Australia. The attack on collective enterprise bargaining by the Howard government since 1996 saw productivity in workplaces and across industry decline. Collective bargaining will be the focus of enterprise bargaining under this Fair Work Bill. The new framework includes the introduction of good faith bargaining. There will be less regulation of the content of agreements. There is no distinction between union and non-union agreements and the approval of agreements will be streamlined. I welcome those provisions of good faith bargaining. It takes place already in workplaces around the country and this bill legislates a fairly common practice.

Good faith bargaining will apply to all parties in this bill. If an employer refuses to bargain with their employees, Fair Work Australia will have the power to test support amongst the employees to which the workplace agreement will apply. If a majority of employees wish to bargain collectively, the employer will be required to bargain with them. Fair Work Australia can make orders on bargaining only relating to procedural issues. It will be unable to make orders on the content of agreements. These procedural orders relate to, for example, attending and participating in meetings, disclosing relevant information in a timely manner, responding to proposals made by the other party in a timely manner, providing reasons for responses to proposals advanced by the other party, and refraining from conduct which undermines freedom of association or collective bargaining. It is important to note that good faith bargaining does not and will not require any party to bargaining to make concessions or to sign an agreement where they do not agree with the terms of the agreement. The bill provides a new scheme for bargaining for low-paid employees. Many employees, and predominantly women, in industries such as child care, hospitality, community work and cleaning struggle to effectively bargain with employers. They have been locked out of the collective bargaining system to an unfair degree.

Fair Work Australia will facilitate the making of agreements and play a direct role in the bargaining process. However, Fair Work Australia must also consider how productivity in the business may be improved and the need to maintain the competitiveness of the employer. The bill provides a balanced approach to the right of employees to meet with their union and the right of their employer to conduct business without interference. The bill allows members of a union that is eligible to represent their industrial interests to meet with the union at the workplace during non-working hours to hold discussions with members. The union must comply with any requests by the employer to meet in a particular room or area as long as the employer’s request is reasonable. Right of entry comes with strict obligations, including holding a valid right of entry permit, the giving of notice and other requirements of conduct while on the site.

The bill introduces new qualifying periods for unfair dismissal claims: 12 months for employees of a business with fewer than 15 employees and six months for employees of businesses with 15 or more employees. The process of dealing with unfair dismissal claims is also streamlined. It is important to acknowledge that unfair dismissal in the small business area will have a code of conduct established that is simpler and straightforward but balances the right of people not to be unreasonably sacked and without recourse.

I indicate that this bill contrasts starkly with the Howard government’s Work Choices legislation. The Work Choices safety net took away the right to collective bargaining, marginalised freedom of association, made it acceptable to unfairly dismiss workers, gutted the powers and responsibilities of the Australian Industrial Relations Commission, and allowed workers’ pay and conditions to be cut by AWAs. Millions of Australians at the last election rejected this approach. This bill provides the things that they called for. This bill provides fairness and balance back into the Australian industrial relations system.

Dennis Jensen (Tangney, Liberal Party) Share this | Link to this | Hansard source

From the outset, I must admit that my expertise does not lie in this area, so I shall use my scientific training to look at the hard data in both the specific area of industrial relations and the economic and social context in which the various regimes have been implemented. As has been acknowledged by this government and as was predicted by former Treasurer Peter Costello almost exactly a year ago, the world economic reality today is a far cry from that of only a year or so ago. When the Labor Party formulated their industrial relations policy, the world economy was, to a large extent, booming. Work was plentiful and our economy was very strong, thanks in no small measure to the hard work of the Howard government. Although the government is always loath to admit it, the mere fact that economic experts are predicting that Australia’s economy is one of the few which may not slide into recession is a testament to the relative insulation from the world economic disaster provided by a decade of strong economic management under the Howard government.

That does not, of course, mean that this strength will continue. One of the main criteria by which this government will be judged is how it manages the economy, including industrial relations, in the coming years. The rest of the world will not care about ideology, just hard economics. If Australia becomes uncompetitive, it will lose market share, especially in primary commodities. If the industrial relations regime allows us to slip back to the bad old ways when, for example, ships were queuing off the Pilbara coast unable to load because of industrial disputes, this will be one of the government’s greatest industrial relations challenges, especially in light of certain union leaders’ bellicose threats before this legislation has even come into force.

The front page of the West Australian on Tuesday 25 November was a harbinger of what we may expect to face, with the headline ‘Time to strike for rights say unions.’ Surely these unions would have been involved in the unprecedented degree of consultation with employer and employee representatives which the minister referred to in her second reading speech. We must ask the question: is this legislation as fair as the minister claims? If so, these unions are clearly threatening to return to the bad old days of capricious, unnecessary and destructive strike action. The pressure will then be on the government to back up the claim made by the minister that parties refusing to bargain in good faith will gain no advantage by flouting the law. You can have the best dispute resolution provisions in the legislation but if certain parties refuse to adhere to them and the law is not backed by fair and scrupulous enforcement then these provisions will be nothing more than a feelgood sham.

I am a bit concerned that the minister seems to be mainly concerned with protracted industrial action. Obviously, strikes which drag on over long periods of time are by definition deliberately harmful to both employers and, in many cases, employees. However, calling a short strike, even for just a few hours, can cause the employer to lose many thousands of dollars. An example of that would be the previously familiar occurrence of strikes in the middle of concrete pours on construction sites. Although the strikes were only of short duration, the cost of the entire initial concrete supply, of removing the partially poured concrete and repouring a fresh batch, can be almost ruinous. Therefore, to judge the severity of the strike purely on the length of time it takes overlooks the economic reality of life in business.

Speaking of industrial disputes, it is worth charting the recent history of the level of industrial disputation in Australia. According to the ABS, the number of industrial disputes across Australia has declined markedly in the past 20 years. In 1987 there were 1,519 industrial disputes, compared with only 135 last year. This decline coincided with a range of institutional, legislative and economic changes which affected industrial relations in Australia.

Following the economic downturn of the early 1990s, there has been a sustained period of prosperity characterised by strong employment growth and a decline in unemployment. One would normally have expected prosperity and low unemployment to be the ideal time for industrial muscle flexing. I believe the reason disputes did not increase was that employees realised the benefits of industrial peace and the industrial regime in force made irresponsible strike action much more difficult.

What is even more noteworthy is that the number of working days lost has also been at historically low levels in the past decade, which also helps the economy a great deal. This reflects well on both participants in industrial relations and the regime under which they operate. For example, in the construction industry, working days lost went from 194,600 in 1987 to 6,800 last year. Working days lost per thousand employees in the construction industry went from 605.2 to 10.1 in the same period—a remarkable achievement and one which should not be ignored. Let us hope that the new regime provides a similar climate for industrial harmony, especially with tougher economic times ahead, particularly for business.

It is also gratifying that the provision for a secret ballot before industrial action is taken has been retained by the Labor government. One wonders, if the principle of secret ballots is supported by Labor and the coalition, why union bosses in Western Australia felt so aggrieved when secret ballots prior to industrial action were introduced in 1997. Many people on both sides of politics have said that Work Choices is in the past and that it was the main reason the coalition government lost the 2007 election. Some have expressed concern that this loss came only after a most disingenuous fear and loathing campaign, to use a phrase much beloved of the trade union movement. However accurate that observation may be, we on this side of the House accept that for whatever reason Work Choices is no more. Despite that, it would be inappropriate to repudiate all the industrial relations reform which happened throughout the 1990s, as much of it was of great benefit to employers and employees. The Labor Party has said as much, and so should we. My colleague the member for Goldstein, when addressing the IPA, was generous and honest enough to acknowledge the part that the Hawke and Keating governments played in freeing up the previously straitjacketed industrial relations system. I would hope for some reciprocal honesty and generosity about the reforms of the Howard government.

This new legislation should be viewed through the prism of past experience—what worked and what did not. What Australia needs is for this government to take the very best of the Hawke, Keating and Howard government reforms and then employ them fairly. Labor has said that an old centralised wage-fixing system is not relevant to Australia’s modern workplaces and modern economy. Therefore, any attempt to return to the pattern bargaining and secondary boycotting practices of the past would be a direct contradiction of the policy Labor took to the last election. I was pleased to hear the Minister for Workplace Relations say in her second reading speech that pattern bargaining is not permitted. The CFMEU stated on its website:

The CFMEU makes no apologies for chasing industry-wide agreements that have common conditions and rates of pay. Pattern bargaining is neither illegal or against the interests of workers. In fact, it is the only way enterprise bargaining can work in a fragmented industry like construction.

Hopefully, this will put the CFMEU on notice. The Labor Party makes a great deal of protecting workers’ freedoms and yet under the previous system there were surprisingly few instances in the media of the terrible exploitation of workers which the Labor Party and the ACTU claimed had occurred. That might have been because the campaign was simply a new version of the good old fear and loathing campaign. However, whatever the rights and wrongs of that campaign the message was loud and clear. The Leader of the Opposition has acknowledged the fact that industrial relations was one of the major factors in the election result last year. The job of this government is to ensure that the baby is not thrown out with the bathwater and that the many good initiatives of the past two decades are not sacrificed on the altar of ideological purity or discarded in order to do the bidding of its mates in the ACTU.

Make no mistake, the ACTU is hoping to go back to the days when it ran the industrial relations arena as its own fiefdom and had a disproportionate say in many of the rest of the decisions made by Labor governments. Who will forget the immortal and very revealing words of the former ACTU official and now member for Charlton, who was reported as saying, ‘I recall we used to run the country, and it would not be a bad thing if we did again’? The power of the ACTU clearly came through its industrial muscle and through its symbiotic relationship with the Labor Party. This usurping of power must not be allowed to recur in the future. When reading through Labor’s policy and the minister’s second reading speech, one has a distinct feeling of deja vu—’Where have I heard these words before?’ The first frisson of familiarity was with the words ‘minimum conditions’, guaranteeing a safety net of enforceable conditions, including minimum wages. I was irresistibly reminded of Western Australia in 1993, when the Court government introduced the Minimum Conditions of Employment Bill, which later became an act and is still in existence. That act provided for minimum rates of pay, maximum hours of work, leave for illness or injury orfamily care, annual leave, bereavement leave, public holidays and parental leave.

This bears a striking resemblance to Labor’s 10 National Employment Standards outlined in Forward with Fairness and in the minister’s speech. It is very gratifying that the Labor government is acknowledging the fairness and responsibility of the Court government’s industrial relations legislation by copying it so assiduously! Labor’s IR policy also included a mention of work-family balance. Is it possible that Labor has kept and cherished a copy of Work and Family Makes Cents, a booklet put out by the Court government illustrating the benefits of having family-friendly work practices? I would like to think so.

The minister’s speech also refers to freedom of association. Not unexpectedly, the greatest emphasis is put on freedom to join a union and participate in collective activity. The opposition of course supports freedom of association too, but in practice not just in words. I will support this legislation on the understanding that an employee’s right not to join a union is as vehemently defended as the right to join. Unfortunately the history of industrial relations under Labor governments does not engender a great deal of optimism.

There have been cases in the past in which employees have been denied their right to freedom of association. One of the most notorious instances of which I am aware happened in the early 1990s in Western Australia. A woman working in the north-west claimed that she had been sacked for refusing to join a union—clearly a breach of section 96b of part VIA of the Industrial Relations Act 1979. An investigation was duly undertaken, at the conclusion of which a senior officer in the Department of Labour Relations quite properly recommended prosecuting the employer. In one of the most appalling cases of wrongdoing by a minister, the officer was ‘admonished for submitting recommendation to prosecute and instructed by the minister to find legal advice to support a recommendation not to prosecute’. It is not only against the principle of the separation of powers for a minister to intervene directly in a decision to prosecute, but that a minister would lawyer-shop to get a legal opinion supporting a breach of the law is unconscionable. I hope that such blatant abuse of the law would not occur under this legislation, and I am sure that the minister will undertake to ensure that it never would.

It is a welcome reform to Labor ideology that employees will have the freedom to choose their bargaining agent. This echoes exactly the same principles as those behind the introduction of free choice of bargaining agents in the Court government’s Workplace Agreements Act of 1993. It will be interesting to see if and how this freedom is upheld in the future. The legislation also reintroduces penalty rates. I sincerely hope that in either the legislation or regulations there is some mechanism to prevent abuse of penalty rates. They should be used for those working considerably longer than is normal, unsociable hours, weekends, public holidays or shifts. Penalty rates should not be abused, as they have been in the past, by some workers dragging out work just a few minutes after knock-off time and getting two hours of extra pay at time and a half, which was a regular occurrence in some workplaces.

The right of union or other officials to inspect employment records is yet another provision which was part of the much-maligned Workplace Agreements Act in Western Australia. It remains to be seen whether this right will be used responsibly or whether we will see a return to it being used as a transparent excuse to cause disruption in workplaces, as has been done in the past. There is another requirement of the legislation which has not had much attention. Ron McCallum, former Dean of Law at Sydney University, made an interesting observation in an article on the Bulletin web site. The article said:

... if the IR system is to be based on the corporations power in the Constitution, laws governing employment will have to conform with what is good for the corporation.

As I have said, there will be analysis of the details of the legislation in the near future, but the real assessment of this legislation will be in the results which accrue from its introduction. Apart from the level of industrial disputation, to which I have already referred, another criterion will be the level of income which flows from this legislation, taking into account the broader economic debate. It is worth noting that from 1997 to 2007, national income—that is, the real net national disposable income per person—rose from around $30,000 to around $39,000. It should also be noted that these figures are adjusted to remove the effects of price change.

Much has been made of the welfare of those on lower incomes. It is to be hoped that the new system will be as beneficial for those workers as the previous one was shown to be. The ABS says:

The average real equalised disposable household income of the low-income group is estimated to have risen by 31 % over the period 1995-2005, although part of the increase may reflect improvements to the way income was collected in the survey from 2003-04. The same individuals were not necessarily in this income grouping for the entire period. But for those people who were, rising incomes on average would have provided a capacity to improve their standard of living.

The favourite catchcry of those in industrial relations and economic disciplines is productivity. It is to be hoped that the new industrial relations regime will be as successful in achieving the productivity gains of the last decade, when multifactor productivity rose by 1.1 per cent per year on average. We will now have to wait to see whether the rhetoric of fairness in this bill is borne out. (Time expired)

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

I say to the member for Tangney that he would have lifted his credibility had he apologised to the Australian public for each and every occasion that he and other members of the now opposition voted for these extreme, unfair industrial relations laws and for what they did to working Australians. We are here today to discuss the key or crucial productivity agenda that was taken to the last federal election, at which the Rudd Labor government got an overwhelming mandate for reform.

The Fair Work Bill 2008 delivers the government’s election promise set out in Forward with Fairness. More significantly, it gets rid of the Liberal Party’s extreme industrial relations laws, Work Choices, and replaces them with a fair workplace relations system. Notably, the bill is about bringing fairness and decency back to the workplace. It balances the needs of employers, unions and employees. As I said, It is about bringing fairness and decency back into each and every Australian workplace.

I am honoured to be among colleagues who will be making contributions today in respect of this bill, as this bill builds on the Workplace Relations Amendment (Transition to Forward with Fairness) Act, which was enacted in March this year—on the second anniversary of Work Choices, by the way. That act ended the making of AWAs and ended the regime that pitted worker against worker and mate against mate. There is nobody who went through the last election who does not know the significance of Work Choices and what it meant in all the electorates of this Commonwealth.

This bill will reintroduce a genuine no disadvantage test for agreements and commence the process of award modernisation. The significance of that is that, under Work Choices—only a couple of years back now—for the first time in our history it was made legally possible for people to be put on agreements which provided for less than the going award rates of pay. This actually occurred frequently in my electorate of Werriwa—and I know it occurred in every other electorate around the land—and it occurred because the Howard government’s industrial relations reform made it legally possible. It was not because there was an economic imperative to do it and not because there was an incapacity to pay. They did it because Work Choices gave employers the ability to freely go about reducing workers’ pay and conditions. Work Choices simply made it legally possible.

The bill before us today takes an additional step of abolishing those unfair and unjust laws. Quite frankly, we saw what the Australian population thought about those laws at the last election. This bill represents a tremendous moment in our workplace relations history, I think. After a decade of attacks from a conservative government, this is a genuine effort to put fairness and decency back into the workplace.

People suffered under the former laws. When people in Australia went to the ballot box, they got it right when they threw the government out, establishing a mandate for the Rudd Labor government. We are not talking here just about all those people who you would ordinarily think would have a stark objection to the laws—not all those trade unionists out there who campaigned against those laws and not all the ‘Your Rights at Work’ committee. Each and every member on this side of the parliament went out during the course of the last couple of years and visited railway stations, went to bus terminals and conducted street meetings, and one of the things that kept happening more and more was that people told us they were concerned not just for themselves, not just for their own conditions of employment, but for their kids and, in many respects, their grandchildren. People actually drew the distinction. Under John Howard’s industrial relations system, fairness and decency were stripped away. What people were protesting about was what they wanted for their kids and for their families—that when they go to work they will be treated with fairness and decency. They want a dignified position. This bill is not just about having something which is so one-sided; this is about having something fair and decent in the way we treat one another in the workplace. That is what this piece of legislation is seeking to do.

Madam Deputy Speaker, no doubt you are aware that throughout my time in opposition I spoke frequently on these industrial relations laws. I objected to them when they were proposed. I spoke and debated them in this House on many occasions. I voted against them on each and every occasion when modifications were made to those laws. What we saw at the last election was the Australian people speaking out about their commitment not only when it comes to how they want to be treated but also how they want the system and the workplace to treat their families. That is why such an overwhelming mandate was given to the Rudd Labor government.

At the outset I talked about my own community in Werriwa. For those in the gallery, it is in the south-west of Sydney and takes in Liverpool and parts of Campbelltown. It is very much, as some might say, a working-class electorate. Under these industrial relations laws, people in my electorate had never been worse off. I have spoken in the parliament on many occasions, highlighting examples of workers who have been treated so unfairly. I will just recap, and I did this exercise this morning. I pulled out just a few cases I spoke about over the last couple of years—people such as Reinaldo Martinez, who was sacked. He was on leave and he was sacked by a telephone call from his employer. He was just told not to come back to work. There was no reason. When the employer was quizzed about it, he said, ‘The federal industrial relations laws allow me to do it.’ That is how it was rationalised. There are also people like Reynaldo Cortez, a father of five who lives at Bow Bowing. He was offered a ‘take it or leave it’ Australian workplace agreement that cut his take-home pay by up to $200 a week and he was told that if he refused to sign the AWA, there were plenty of other people who would.

Employees at Lipa Pharmaceuticals at Minto were offered an AWA that proposed to undercut the existing industrial agreement by scrapping Saturday and Sunday hourly rates of pay, cutting the public holiday rates of pay and excluding all protected award conditions while providing the same rate of pay as their existing agreement. What is more, under what was proposed in that AWA there was no further pay rise for five years—after losing all those conditions. That facility had, from memory, something like 250 to 300 people working there. Obviously, I had some time for this company. I had spoken in many instances in the past about the good work they had done in my community, but when I pressed them on this what I discovered was that they did it not because of an economic constraint and not because of an incapacity to pay; they did this because the federal laws allowed them to do it. So why pay people more than you have to? If the laws say you can cut their wages and cut their conditions, employers will say, ‘Well, if that’s what our law-makers say, we should go ahead and do it.’ That is the responsible thing you would do for your fellow directors and your shareholders. That is what this company did.

Then there were those poor workers at Esselte in Minto. This was a strike that took place and went on for three months. These were all people on absolute minimum rates of pay—no over-award component at all—and the people who could least afford to be on strike. Courageous people like Warren Small and David Rojas withstood the winter mornings going out there and harnessed so much support within my community; it was phenomenal. Do you know what they wanted? All they wanted was to be able to negotiate collectively with their employer—nothing more than that. There was no specific pay condition on the table; they wanted to be able to get their union to go there with them and negotiate with them. One bloke came forward and admitted to me that he was not literate. He said he did not feel comfortable going in by himself; he wanted to go through with a group of workers and his union. Under Work Choices, it was the employer who had the sole discretion as to whether they would negotiate collectively or not, not the employees—it had nothing to do with the employees at all. It did not matter if you had 100 per cent of workers in a collective arrangement; it was up to the employer as to whether they would negotiate collectively.

The Rudd government’s laws will bring back fairness. They will restore the pendulum where it belongs so there is balance between employees and employers driven by the desire to ensure that there is greater productivity in all Australian workplaces. Our laws have enterprise bargaining very much at their heart to drive productivity. They are about bargaining in good faith at the enterprise level, underpinning fairness and decency and having a safety net of conditions which cannot be traded away or stripped away. That is what makes these laws so critical. People have had awards in the past, and awards were always seen as being the bare minimum until the Work Choices legislation came down that gave employers the right to legally strip away award conditions. This is where we are restoring that balance.

The reasons are that, quite frankly, it is a commitment to the Australian people, it is the right thing to do, it is good for employers and it is good for the economy because having our direction very much squarely based on enterprise bargaining ensures that productivity remains front and centre when looking at industrial relations in Australian workplaces into the future. We will provide a strong safety net where workers across Australia, both in good times and in the less certain economic times that we are experiencing now, will be protected.

In complete contrast to the former Liberal government, the Rudd government has engaged in an unprecedented level of consultation in developing the Fair Work Bill, and this bill is better for it. The Fair Work Bill sets out the industrial system which replaces Work Choices and which will provide a comprehensive safety net of minimum wages and conditions that cannot be stripped away. The new employment standards, which will enshrine 10 basic rights, will double the protections offered under Work Choices. It will cover the vast majority of Australian workers under its unfair dismissal laws. It will remove the clear injustices and the feelings of insecurity of workers who found that they could be dismissed, as I indicated occurred to a constituent of mine at Werriwa, at any time and for no reason. The provisions will certainly enable and specifically address issues in respect of small business in terms of the code of conduct, the code of dismissal and protecting employees to the extent that ‘operational reasons’ will no longer be a defence for an employer wishing to make an unfair dismissal.

The bill legislates for good faith bargaining. The rules will have their emphasis on collective bargaining and do not differentiate between union and non-union agreements. Instead, an agreement will be made with the approval of the majority of workers in the workplace. That is hardly a thing that most people would have any objection to. This goes and discusses, at the workplace level, what is fair and what the requirements of every member of the workplace are and, therefore, it will recognise the majority view on any workplace, whether they are union or non-union organised.

I would like to say that, at this point, I recognise that most workplaces in my electorate already do bargain in good faith and without any intervention. However, where that does not happen, this bill also enables Fair Work Australia to make orders to ensure that compliance with good faith bargaining requirements is attended to. The bill also establishes Fair Work Australia as the new industrial tribunal which will facilitate and approve collective bargaining agreements, adjust minimum wages and deal with unfair dismissal claims and workplace disputes. It will replace six existing bodies, including the Australian Industrial Relations Commission, and will see the end of bodies created by the Howard government such as the Workplace Authority, the Workplace Ombudsman, the Fair Pay Commission and the Australian Building and Construction Commission.

There are many other significant components of this bill. However, I do not think I am going to have the luxury of time to deal with them. It is important to note that this bill will ensure that employers and employees have access to a transparent, clear and simple system of workplace relations, one that is designed to help them—not hinder them—in looking after people’s rights and responsibilities. It will give Australian employees confidence, with a simple fair dismissal system, particularly for small business, which is something that I know will be welcomed by the 11,000 small businesses registered in my electorate alone. It will protect employees who are very much dependent on minimum wage protections. Importantly, this will assist those low-paid workers, those who are vulnerable and those without any real access to collective bargaining and ensures that employees have the freedom of association at each and every workplace. This will remove the employer having the sole discretion of whether they will collectively bargain with the employees or not and will ensure that the discretion will now be in the hands of the parties and the majority of the workers in any one particular workplace. I commend the bill to the House.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! It being 2.00 pm, the debate is interrupted in accordance with the standing orders. I take it that the member for Werriwa has concluded his remarks but if he has not, he would have leave to continue his remarks.