Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

The question now is that the amendment be agreed to.

Terri Butler (Griffith, Australian Labor Party) Share this | Link to this | Hansard source

This bill, the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, seeks to further erode Australian's right to strike by amending laws that are presently in the competition and consumer law but are, inherently, industrial in character. We have a serious problem in this country. Working people are becoming less powerful. This is reflected in increased profit share of national income at the expense of the labour share and in persistently low wages growth. This year, we saw a situation where the wage price index was less than CPI. Wages grew more slowly than consumer prices did. This meant that Australians took a real pay cut. Far from the wages explosion that the coalition warned of when they were first elected, Australia has the opposite problem.

For working people to be able to fairly share in this nation's prosperity, they need power. It's not power for the sake of power but the ability to influence what sorts of workplaces we have and what sort of society we have. Most people on salary or wages don't have much in the way of wealth. Some own a home—or, more likely, have a mortgage. For many, house prices put home ownership just out of reach. So their power cannot and does not come from money. It comes from the value that they provide through working. It comes from the laws passed by governments that those workers contribute to electing and that the institutions created. That makes the right to strike important. It also makes our system of conciliation and arbitration important—to avoid situations where people actually exercise their right to strike by empowering them in other ways.

Conciliation and arbitration of industrial disputes is an idiosyncratically Australian approach to settling disputes. Writing in 1916, the then president of the Commonwealth Court of Conciliation and Arbitration, HB Higgins, said:

… the process of conciliation with arbitration in the background is substituted for the rude and barbarous processes of strike and lockout. Reason is to displace force; the might of the State is to enforce peace between industrial combatants as well as between other combatants; and all in the interests of the public.

But, in recent times, and particularly since WorkChoices, access to conciliation and arbitration has been limited. Without access to conciliation and arbitration, then of course the right to strike becomes more important. I don't say this to imply there is no role for collective bargaining. On the contrary, we've had informal collective bargaining in this country throughout the history of the Federation—albeit, it was largely unregulated and informal until the 1993 Brereton reforms.

In the same article that I just mentioned, HB Higgins said—pretty dryly, actually—it was surprising how often the possibility of arbitration led participants to make friendly collective agreements rather than press for an award. Even after collective bargaining became central to wage setting in Australia after 1993, conciliation and arbitration remained important features of our system, but, as I said, access became more limited under the conservatives' WorkChoices. The erosion of access to conciliation and arbitration of industrial disputes in this country has contributed to the erosion of working people's power.

With less access to conciliation, the thing that was there to avoid people having to use their right to strike is not there anymore—or it's not there to the same extent—so of course people have less recourse to public institutions when they're not getting a fair go than they had when conciliation and arbitration were more readily available. That arguably makes the right to strike more important than it has been since Federation. In a 2008 paper for the Parliamentary Library, Jane Romeyn wrote:

Strikes and other forms of industrial action represent the further expression of collective voice by employees and may help to balance their bargaining power vis a vis the employer. Indeed, strike action has been recognised as playing such an indispensable role in resolving deadlocks in collective bargaining relationships as to be regarded as an essential ingredient of free collective bargaining …

She notes that Paul Weiler has argued that 'banning strikes would effectively end collective bargaining'. She also notes that another academic, Professor Antoine Jacobs, has argued that 'in the absence of a right to strike collective bargaining would amount to collective begging'.

Of course, WorkChoices also saw a range of substantial impediments being introduced in relation to the right to strike. It wasn't just conciliation and arbitration that were substantially eroded under WorkChoices; the right to strike also came under substantial attack, as it also had in the preceding Building and Construction Industry Improvement Act 2005, which had outright prohibited almost all industrial action in the building and construction industries. In her paper, Jane Romeyn wrote:

Academic commentators have agreed that the Work Choices amendments, while stopping just short of an outright ban on protected industrial action substantially restricted the availability of protected industrial action.

This bill, which seeks to further curtail the right to strike in Australia, continues the conservatives' history of undermining the right to strike.

It is worth noting the history of the secondary boycott provisions in trade practices law in Australia. As you'd be aware, it was the Whitlam government that introduced the modern Trade Practices Act in 1974, a landmark piece of legislation that introduced genuine competition policy into this nation. Just that piece of legislation alone made a massive contribution to improvements in our gross domestic product. Shortly thereafter, in 1977, the year I was born, the Fraser government introduced section 45D, the secondary boycotts provision, into the Trade Practices Act. They did that to directly impact on unions' ability to strike; that was the purpose of the introduction of section 45D.

It was the then member of the Fraser government, John Howard, who introduced section 45D and, later, 45E, which explicitly referred to unions, into the Trade Practices Act. They were targeted. The provision which referred to agreements with unions, section 45E, was introduced in 1980. Then, in 1984, once they had been elected, the Hawke government attempted to repeal those provisions—sections 45D and 45E—but they were defeated in the Senate. The attempt to repeal was based on the, I think, quite clear fact that these are provisions that are, as I said earlier, inherently industrial in nature. They don't belong in competition laws; they belong in industrial relations laws.

Further attempts to repeal were not successful, but, in 1993, you'll remember that the then minister, Laurie Brereton, introduced a suite of reforms into workplace relations laws in this country. There had been criticism by the ILO in relation to our industrial laws and in relation to the secondary boycott provisions in the then Trade Practices Act. You saw, through the 1993 reforms, for the first time a positive right to strike in Australia. There had been strikes in Australia but there was, for the first time, what was called protected action in the industrial relations legislation.

But, relevantly for this bill, that was the year in which the Keating government was able to repeal the secondary boycott provisions from the Trade Practices Act through modifying section 45D and deleting section 45E. The amendment was to ensure that the Trade Practices Act provision was aimed at the purpose of the Trade Practices Act, which was to deal with competition and to promote competition. That provision dealt with situations where there had been a substantial lessening of competition, and there was a limitation of the provision so that it effectively applied only to non-industrial secondary boycotts. But of course in 1996, when we had a change of government again, the Howard government moved the secondary boycotts provisions from the industrial relations laws back into the trade practices legislation. Why? So that a more onerous obligation could be imposed, to better prevent secondary boycotts, or, in other words, to better erode Australians' right to strike.

Mr Deputy Speaker, I have a range of concerns about this attempt to erode Australians' right to strike, as I'm sure you appreciate from the comments that I've made. One of the particular ways in which this legislation will seek to make it harder for people to engage in their right to strike is by imposing massive penalties on secondary boycotts. The legislation already proscribes secondary boycotts. This will introduce massive penalties. It will take the penalties from $750,000 to $10 million, or, if the amount that's three times the total value of the benefits obtained from the secondary boycott is greater than that, then that greater amount, or, if the court cannot determine the total value of these benefits, 10 per cent of the annual turnover of the corporation for the 12 months leading up to when the secondary boycott occurred. It's an attempt to crack down on sympathy strikes. It's an attempt to proscribe sympathy strikes, or to make it even harder to exercise your right to strike in Australia.

We have a right to strike. We're a signatory to and we've ratified the International Covenant on Economic, Social and Cultural Rights, which expressly recognises the right to strike, at article 8. That's been in force in Australia since 1976. As the former president of the Industrial Relations Commission Justice Giudice has acknowledged, the High Court found, in the Victoria v the Commonwealth case, following the 1993 legislation, that does give rise to an obligation for there to be a right to strike provided for in Australia.

We're also party to two International Labour Organization conventions that give rise to a right to strike. They are the Freedom of Association and Protection of the Right to Organise Convention, 1948, No. 87, and the Right to Organise and Collective Bargaining Convention, 1949, No. 98. The Committee on Freedom of Association and the committee of experts from the ILO have repeatedly found that these instruments give rise to a right to strike. As I said earlier, the ILO has been critical, over and over again, of Australian restrictions on the right to strike included in the Workplace Relations Act, in the building and construction legislation and in the trade practices legislation. It has been specifically and expressly quite concerned about our secondary boycott prohibitions in this country. The committee of experts has expressed concern that those provisions rendered unlawful a wide range of boycott activity and most, if not all, sympathy action.

Mr Wallace interjecting—

I hear the member for Fisher saying that it's a good thing too. It's really indicative of the view of members opposite, who don't support the right to strike and are happy with the low-wage paradigm that we're now living in. I think it is worth acknowledging that we've had an international body, which is the body that oversees conventions to which we are a signatory, criticising us repeatedly from 1989 right through until at least 2014, for this failure to protect the right to strike, criticising us for this specific provision, the secondary boycott provision. And members opposite say, 'A good thing too!' They're happy for people to be deprived of their power, but I'm not happy for that. I think that it is very, very disappointing, and, quite frankly, flouting our international obligations, that this government is now seeking to impose $10 million in penalties on sympathy strikes in a further blatant and naked attempt to attack unionism in this country.

This bill, to the extent that it seeks to increase the practical impediments to Australians exercising their right to strike, is not just disappointing; it's dangerous. The ultimate consequence of reducing working people's power is the reduction in pay and conditions that we're already experiencing. I'm sure you remember that I quoted earlier the idea that, without your rights, without your empowerment, without institutions, without regulation and without rights to withdraw your labour, it's not collective bargaining but collective begging. There is a real problem with bargaining in this country when people don't get wage rises for years and when wages go backwards compared to consumer prices. We have to come to terms with this. It's not just a problem for the households; it's a problem for the economy. It hits consumption, which slows down GDP growth, and—possibly more saliently for this place—it affects the income tax take and therefore the revenue that the Treasurer has to deal with when it comes to seeking to balance the budget.

So slow wages growth is a problem, and dealing with that problem needs to come to terms with the fact that collective bargaining needs to work. It needs to work, and wage fixing in this country clearly needs improvement. So instead of doing what it should be doing and focusing on that, it's regrettable that the government is trying to crack down on strikes and to reduce working people's power. Of course when that happens, when you reduce working people's power and slow down wages growth or even have wages going backwards, that increases the inequality that we face in this country. It feeds into greater economic inequality. More importantly, it feeds into the sense that the system is rigged against you. When you can't get a fair go at work, when you don't have any power in the workplace, it feeds into the sense that the system is rigged against you, and that's not just bad for our workplaces, our economic rights, our wages and our salaries; it's bad for our democracy and civic engagement. Because if people think the whole show is rigged, then they're at risk of giving up, and we shouldn't allow that to happen.

Craig Kelly (Hughes, Liberal Party) Share this | Link to this | Hansard source

by leave—I just want to sum up in the few minutes left. Schedule 8 of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 allows a corporation or a person to notify the ACCC of a resale price maintenance agreement as an alternative to seeking authorisation from the commission. It is clear that in today's marketplace this is an appropriate change, because the notification available for resale price maintenance conduct in many circumstances is actually procompetitive and the notification process is a much quicker and less expensive means of obtaining an exemption for the authorisation. This is a very welcome step—another step that this coalition government is taking to support small business.

Also in schedule 6 are increased penalties for secondary boycotts. Secondary boycotts clearly have nothing to do with the right to strike. Secondary boycotts by themselves are harmful to trading freedom, they are harmful to competition and they warrant a very significant penalty. If we want to drive up wage growth in this country, it's about becoming more productive. We need to become a more productive nation. If groups are able to engage in secondary boycotts, that will dampen the productivity of this nation.

As I said, this is not about stopping someone's right to strike. A secondary boycott is where someone coerces and threatens a third party, which is often an employer, and puts pressure on them to cease trading with a fourth person—and that is often a small business. This damages the economy. It is absolutely correct that we increase penalties for that activity if we want to have a productive economy where people will put their money on the line—put their capital on the line—take business risks and employ people without fear that they are going to be victim of a secondary boycott. So I commend that section of this bill to the House.

However, I would note we still have some more work to do. We still have no effective provisions to prevent anticompetitive price discrimination in this nation. The US has had the Robinson-Patman Act for many, many years, which gives small business an opportunity. The US Federal Trade Commission said of that Robinson-Patman Act:

… unfair business practices, price discrimination most directly denies to small business an equal opportunity to live and grow on the basis of efficiency. Such opportunity is the very essence of the competitive economic system which our antitrust laws—

(Time expired)

Madeleine King (Brand, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak to the amendment as moved by the member for Fenner to the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 that would have the effect that, whilst not declining to give the bill a second reading, condemns the government for pushing ahead with its agenda that will worsen inequality, including increasing penalties for sympathy strikes to hundreds of times the size of other unprotected industrial action penalties.

At the heart of it, the difficulty I find with this legislation—as other members have mentioned—is the extraordinary attack it makes on the right to strike and impedes the right of workers to strike and withhold their labour. Though I support the general nature of the legislation, I cannot support schedule 6, a measure which will increase the maximum penalty for breaches of secondary boycott provisions. This government's proposal, specifically schedule 6 of the bill, seeks to increase the penalty for breaching these provisions from the current value of $750,000 to:

… the greatest of:

Despite the wordy definition, in essence, this means unions will be punished for sympathy strikes—for standing in solidarity with their fellow Australians and their fellow workers. This legislation will disallow collective action by unions and employee associations across sectors and further constrain their ability to organise. If we can break that down for a moment: if a union downs tools in a sympathy strike, despite being an industrial action, they are not protected by industrial law. This government—like right wing, antiworker Liberal governments before it—is seeking to play politics with consumer and industrial law, weaken the union movement and disenfranchise workers.

I'm very glad the member for Fisher is here today. Often, he and others on the government side of the chamber like to assume that many of us on this side were union officials in a past life. I have not been. I've worked in the university sector, worked as a commercial lawyer and also ran an international think tank, but I am very proud to stand with my union officials and sisters and brothers in the union movement. They do a great deal of great work for workers across this country. I will always take the time to remind the member for Fisher of that fact.

If I could return to the bill, this government is inconsistent. This increase to the maximum penalty for a secondary boycott is out of step with similar legislation concerning unprotected industrial relations activity. In fact, comparing this proposal with the maximum penalty as stipulated in the Fair Work Act 2009, it's 800 times higher. As I previously stated, I support the crux of the bill. I support 11 of the 12 schedules to it, and that's because I believe in competition.

Labor has always been the party of competition. It was Labor who floated the dollar and deregulated the banks when the conservatives on the other side could not muster up the courage. They didn't have the mettle. Labor believes in competition, meaning strong wages, low prices and high-quality production for Australians. We believe in an innovative and fair economy with a high standard of living and a focus on jobs. In order for the economy to be competitive, vested interest and rent-seeking monopolists must be defeated and consumers must be protected and encouraged to engage with the market. Legislation that's worked toward this end promotes fairness and equity—in my opinion, two cornerstones of our Australian way of life.

Labor has always valued competition because it values fairness. It was the Labor Party that introduced the Trade Practices Act in 1974. Before this, there was nothing. There was no act of parliament whatsoever dedicated to competition matters. This Labor brainchild—the act which we now know as the Competition and Consumer Act—remains the backbone of Australian competition law. It was also Labor which in 2009 criminalised cartels. Labor supports equity in business and backs in any measures which will cut unnecessary red tape and improve the ease of business, as long as such measures are sensible and fair to the consumer. I understand that you can't have upward social mobility without a strong economy and without innovation and business. Labor has always understood this.

In Labor, we continue to stand against monopolies and cartels, as those who primarily lose out to cartels are the everyday Australian consumers and small and family businesses. We don't want local business to lose out at the hands of these cartels who seek to violate competition law and the integrity of the Australian market. Our team has consulted widely. I commend the members for Fenner and Gorton on their extensive work in this process. We have ensured this bill does not water down cartel provisions. At the same time, we have seen that the bill seeks to continue to encourage legitimate joint ventures by making sure they aren't affected unintentionally by the cartel provisions. This bill broadens exemptions so that they cover both contracts and agreements and understandings. This bill extends the joint venture exemption, including provisions for the purposes of, and reasonably necessary for, undertaking the joint venture, and also extends the exemption to the acquisition of goods and services in addition to the production of goods and services.

Our Labor team has also consulted widely as to the reasonable search defence this bill seeks to introduce. We have found, thankfully, that the measure will not allow companies and individuals under investigation to use this defence in refusing or failing to comply with a compulsory information request by the ACCC under section 155 of their act. Section 155 of the act is integral. It is the foundation of the ACCC's ability to investigate any perceived breaches of the act. At the last election Labor, which nearly won government, of course, sought to strengthen section 155 with a suite of policies. We committed to increase the penalties for anticompetitive or anticonsumer conduct and to use some of the revenues to increase the ACCC's litigation budget from $24.5 million to a maximum of twice that level. At the last election we also committed to give the ACCC a market studies function—a measure that it's been in dire need of for years—to help the body identify competition challenges before they become systemic.

Labor will always support measures that boost competition because Labor is the party of competition. It was Keating who commissioned Professor Fred Hilmer to chair a comprehensive review of competition policy. The Hilmer report set the agenda for competition policy in Australia. The Productivity Commission found that reforms implemented as a result of the report led to a significant and permanent increase in the Australian economy's productive capacity. Similarly, the Grattan Institute found that National Competition Policy was one of the 10 big reforms which led to 24 years of uninterrupted economic growth in Australia. The Rudd and Gillard governments furthered important changes to competition and consumer policy settings. In 2011 Labor introduced the Australian Consumer Law, a cooperative reform between the states, territories and Commonwealth governments that created a consistent national approach across a range of consumer issues, such as unfair contract terms, product safety and consumer rights.

The white-collar crime of cartel conduct, where businesses come together to fix prices and rip off consumers, was just a civil offence before Labor's intervention in 2009. This was inconsistent with international best practice. It meant that the appropriate disincentives were not in place to deter such crimes. Under Labor, cartel conduct was criminalised. It brought Australia into line internationally and meant that offenders could now face imprisonment if caught fixing prices with their competitors.

The Labor team has long understood that effective competition policy is at the heart of a productive, innovative and well-functioning economy. At the same time, it is fair. Competition policy is integral in a fair society. It protects the interests of consumers over rent seekers and monopolists. On this, our record could not be stronger. We understand that well-functioning, strong economies are a means to an end. For Labor, the development of competition policy will always be seen through this prism. For Labor, competition remains a vessel not just delivering lower prices to Australian consumers and families but spreading equality of opportunity throughout the community. We believe that, in certain circumstances, there is a need for government intervention where markets fail. We believe in creating and maintaining consumer protections to ensure markets work for all Australian consumers. Lower barriers to entry lead to more competition and therefore greater participation. In light of this we oppose any measures that will hinder genuine economic competition in Australia, such as the government's dangerous effects test legislation.

However, Labor welcome the government's announcement to align Australian consumer law penalties with the rest of the act, but we urge it to adopt Labor's other policies which are in line with international best practice. Sympathy strikes or secondary boycotts, proposed to be outlawed in schedule 6 of this bill, are permissible under international law. As per convention 87 of the International Labour Organization, such strikes are permitted providing the original strike is lawful. Thus, the prohibition of secondary boycotts in Australian law is not permissible. Therefore, this increase in maximum penalties is inconsistent with Labor's push for higher penalties for anticompetitive or anticonsumer conduct, in line with international best practice. Australia is already internationally out of step with best practice, and any increase would push us even further away from that goal.

Competition policy should never be used as an excuse for blind, ideological and prejudiced cuts and privatisations; yet this government is blinded in its dogmatic anti-union agenda. This is the same rabble that dropped $46 million on a political witch-hunt into the unions in the last parliament in the form of a royal commission—but, then, they don't really care about how much money they drop on a ridiculous thing like a $122 million survey. This measure is just another brick in the wall of the Liberal Party's rich history of abusing the powers of government in order to attack the union movement and their ability to organise. When labour is involved—and when I say 'labour' I mean people's right to work—sometimes all they have in the end is the right to withdraw that labour and they should be able to do that.

Someone needs to tell the Prime Minister that these attacks on unions have been done before. The Fraser government tried to remove secondary boycotts from the accountability of industrial relations law in the 1970s. The Hawke government then sought to repeal the measures in the belief that secondary boycott provisions were best mediated through industrial courts and tribunals, not through the competition regulator—but the Senate blocked this. Though the Keating government managed to get some secondary boycott measures through the Industrial Relations Act in 1988, Howard then removed them, of course, from the scope of industrial relations in the 1990s. As evidence, this measure, this schedule 6, is pure dogma. It is a symbolic, ideological rehashing of the same argument that has been spewed out in this chamber for over 40 years. It, like so many Liberal Party nonsenses, is a wedge, a delaying tactic, designed to mask the fact that they have no agenda and that, since limping into government last year, they've achieved barely anything.

The union movement has built up over years of fighting for workers' rights many of the institutions we take for granted today—the fight for the eight-hour working day; rest breaks; award rates; penalty rates, which this government won't protect; superannuation; equal pay for women; workers compensation; annual leave; sick leave; long service leave; maternity leave; hopefully soon domestic violence leave; redundancy pay; and unfair dismissal protections. They are just some of the battles our union representatives have fought for for us and for workers across the country.

I'd personally like to note in this House the work of the progressive Labor union branches in Western Australia and their tireless secretaries: Tim Dawson of the Transport Workers Union; Peter O'Keefe of the Shop Distributive and Allied Employees' Association—or, as the Prime Minister likes to call them, 'shoppos', though we call them the 'shoppies'; Mike Zoetbrood of the AWU; Christy Cain from the Maritime Union of Australia; Mick Buchan from the Construction, Forestry, Mining and Energy Union; and Philip Woodcock of the Rail, Tram and Bus Union. They always act in the interests of their members, in the interests of the workers and in the interests of Western Australia, and they will continue to do so. I also acknowledge the tireless work of the union officials of United Voice in Western Australia.

Despite all the hard work of unions, the Liberal Party continues to attack the union movement. The national income of employees is going to 50-year lows. The IMF found that one of the significant reasons that workers are getting less overall out of the economic pie is a drop in union membership. In fact, union membership is low. It is at around 15 per cent. It's at its lowest level in 110 years. Inequality is increasing, with earnings over the past generation rising three times as fast for the top 10th of income earners than for those at the bottom. The IMF has stated that declining union membership is responsible for 19 per cent of the fall in workers' income. The government do not want the workers united. They do not want to see your unions strong. They're happy to corroborate with the bosses while your unions are kept in silos and treated like criminals for showing solidarity with their colleagues.

The government is content with cutting penalty rates for up to 700,000 for people in the retail, hospitality, fast-food and pharmacy sectors. Ten thousand workers in my electorate have had their penalty rates cut, and the government is more than happy to push ahead with its budget for millionaires and multinationals, including a $65 billion tax cut for banks and multinationals. They don't have the political courage to allow a free vote and legislate on marriage equality, but they have plenty of time for union bashing and tax concessions for the wealthiest. I ask you: who exactly in this place is playing class warfare?

Tim Hammond (Perth, Australian Labor Party) Share this | Link to this | Hansard source

I am delighted to rise in support of the position put by the shadow assistant Treasurer and just as delighted to support the very eloquent speech made by my good friend and colleague, the member for Brand, who, as usual, was centimetre perfect in her remarks, both in the substance and content of her analysis, as well as her true Labor passion for a great labour movement that involves not only the parliamentary wing of this great party but also the industrial wing and the trade union movement.

I must say what I find really curious about this faux endearment that the conservatives have for the trade union movement is that they love to preface their remarks with: 'Look, I think the trade union movement is great, but.. .' Then they insert a defamatory phrase about a particular militant union here: 'I think trade unionism is fine, but you're all bikies.' Or 'I think the trade union movement is fine, but you're all corrupt.' It's a bit like saying, 'I'm not racist, but…' and then we inevitably know what's going to happen next—a blatantly racist remark uttered from the mouth of the aforementioned racist. It's the same here. What you find when you hear 'I think trade unionism is fine, but…' is that you never actually hear anyone on the conservative side in this place go any further as to why the trade union movement has made so many valuable contributions to our community.

It goes so much further than simply protecting the rights and entitlements of workers all over the country and has done so for hundreds and hundreds of years. It goes so much further than paying homage to the fact that the trade union movement helped create the eight-hour day—eight hours' sleep, eight hours' recreation and family time. It goes so much further than that. The reason we are quite right to be celebrating the role of the trade union movement in this country is that the trade union movement speaks to the values that come from collective action done well in protecting fundamental workplace rights and entitlements of Australians. And you often hear these remarks again by ill-informed conservatives to say, 'Well, how much can it really be reflective of either (a) the Labor Party or (b) the community at large if we see the numbers of those who join the trade union movement shrinking? How much say—

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

Order! I remind the member for Perth to concentrate on the substance of the legislation. You've had three minutes of entry. That's why we have members' statements.

Tim Hammond (Perth, Australian Labor Party) Share this | Link to this | Hansard source

I'd be delighted to. The subject matter of the trade union movement goes hand in glove with the substance of this legislation as to why the Labor Party opposes schedule 6 of this legislation in relation to secondary boycotts. At its heart it talks about how the trade union movement espouses values of collective action, collective strength and a fearless fight for rights and obligations and entitlements for working Australians. Just as this government loves to try and dress up their faux defence of the ideals of the trade union movement, what we see in this legislation is a veiled attempt by this government to try and espouse a phoney notion by introducing these incredibly onerous penalties under the secondary boycott provision—schedule 6 of the act—on the basis of fairness. Well, it's not fairness at all. We all know what it is, and it's appropriate that we call it out for what it is. It's a subversive attempt, through backdoor means, to subvert the aims of the trade union movement when it comes to notions of sympathy strikes. That's why I am delighted to stand up here and support the shadow Assistant Treasurer and those who speak so eloquently, like the member for Brand, in relation to the amendment, which, at a substance, makes clear that the House ought to condemn the government for pushing ahead with its agenda, which will worsen inequality, including increasing penalties for sympathy strikes to hundreds of times the size of other industrial action penalties.

The devil is in the detail here. This is not in any way, shape or form legislation that is designed to do what they propose it does, which is actually serve as a deterrent to all corporations or third persons from trading with a fourth person—that is, secondary boycott. It is increased from $750,000 to $10 million. All we need to do is go to comparisons for similar activity under the Fair Work Act. This is really where the rubber hits the road in relation to why this provision in schedule 6 is so rightly opposed by the Labor Party. It's because in the Fair Work Act at least we see penalties for what they are. Equivalent provisions under the Fair Work Act are subject to far less severe penalties, with a maximum of 60 penalty units—that is, about $12,600.

What we see here, in this veiled attempt at nobbling the trade union movement through the secondary boycott provision increase in penalty, is that the maximum penalty for a secondary boycott is almost 800 times higher than the maximum penalty for unprotected industrial action. So why don't we just call this for what it is—an attempt to take out from under the feet of the trade union movement an approach which is simply about exercising an industrial right that has existed for decades. These laws are typically used against unions that are engaged in sympathy strikes. The numbers speak for themselves in relation to the results as published by the Australian Competition and Consumer Commission.

We are not opposing for opposing's sake. We are supporting 11 of 12 schedules to the bill, but what we do not do, will not do and will not let pass in this place is any policy that moves Australia further away from not only international law and best practice but fundamentally something that looks at protecting rights and entitlements of working men and women in this country. We have taken significant steps, which this government have adopted somewhat belatedly, in relation to bringing into parity with international best practice appropriate penalties for breaches of consumer law and anticompetition law. We've made it very clear that we think that the penalties imposed for misleading and deceptive conduct under the Australian Consumer Law ought be in line with the other provisions of the Competition and Consumer Act and be increased to $10 million.

We are also, quite proudly, the party of competition, because competition fundamentally means better outcomes for Australian families. It means lower prices, higher wages and better quality products for Australian families. It means a more productive, more innovative and job-rich economy. But we will not stand here and take any part in endorsing legislation which has the practical effect of hindering genuine economic competition in this country, including the secondary boycott provisions and the government's dangerous effects test legislation.

I'd like to come back to the secondary boycotts because I really am of the view that this is where the proposed legislation is at its most insidious. As we know, a secondary boycott involves a person in concert with another person engaging in conduct that hinders or prevents a third person from supplying or acquiring goods and services to or from that fourth person. The schedule that is the subject of contention increases that penalty to an enormous amount—$10 million, which is three times the total value of the benefits obtained. And the International Labour Organization permitting sympathy strikes means that this change is entirely inconsistent with our party's policies to have high penalties for anticompetitive and anticonsumer conduct in line with international best practice.

Again, I just can't help but see a most consistent pattern of egregious behaviour by this government in the many and varied ways it seeks to dud Australian workers. Not only does it seek to usurp a fundamental international legal right in relation to sympathy strikes or secondary boycotts through this schedule, but also we know well that this government will not move an inch—out of ignorance, out of obstinacy or by just plain being completely off the Richter scale when it comes to anything remotely like an ethical compass—in relation to penalty rates. This government stands here and pretends to back in this legislation on the basis of levelling the playing field, when we know perfectly well that that's not the case. It is designed to try to subvert the rights of the trade union movement at the same time that it is perfectly content to cut penalty rates for up to 700,000 Australians in the retail, hospitality, fast-food and pharmacy sector. That is, at last count, over 120,000 to 150,000 Western Australians and something in the range of about 15,000 workers in my federal electorate of Perth.

So, get this: at the same time that we're seeing the rug pulled out from under the feet of Australian workers we see this government being completely consistent in its hypocrisy in relation to deciding its okay to find the money in the budget to dole out $65 billion worth of tax cuts, of which we know that at least $7 billion—probably closer to $10 billion—goes to the big four banks. We see a government entirely content to prop up its current cabinet in a manner that is inconsistent with the way it has treated former ministers of this cabinet. We see a government that is entirely content to back in the big end of town in relation to these tax cuts and at the same time jeopardise the rights and entitlements of working Australians.

The great shame in relation to this proposed legislation is that it does a complete disservice to an otherwise noble aim of this great party, the Australian Labor Party, in relation to measures that have consistently boosted competition since the Whitlam government was elected back in 1974. We see from the Labor Party a genuine and honest attempt, every single step of the way, to introduce measures into legislation that actually promote competition. We saw it in the Trade Practices Act. We saw it under Prime Minister Keating, with Professor Fred Hilmer's comprehensive review of competition policy, known of course as the Hilmer review. Under the Rudd and Gillard governments there were further important changes to competition and consumer settings and an enormously significant change in the replacement of the Trade Practices Act, which had served us tremendously well for over 35 years, with the Australian Consumer Law. The Australian Consumer Law is not only a groundbreaking piece of legislation in this place but also something achieved by way of cooperative reform between the states and territories, creating a consistent national approach across a range of consumer issues such as unfair contract terms, consumer rights and product safety. So, we have long recognised that effective competition policy lies at the heart of not only a well-functioning economy but also, fundamentally, a playing field and safety net that protects Australian families.

We have always understood that a well-functioning economy is the best vehicle for ensuring that we lift the living standards and lift the prosperity levels of everyday working Australians. We know this government has it wrong every single step of the way, as demonstrated daily by its almost breathtaking levels of hypocrisy. Schedule 6 to this bill is no better than that and no better than a sneaky backdoor subversive attempt to detract from the rights and entitlements of everyday working Australians.

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

I thank the member and thank him for briefly touching on the legislation.

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

I rise to support the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 and the amendment moved by the shadow Assistant Treasurer. The member for Perth is right. The government always find a way—whatever they do, in whatever area of public policy—to target workers and organised labour in this country. They cannot help themselves. The fact is that we support overwhelmingly the recommendations of the Harper review. I might add that the review was handed down 2½ years ago, in March 2015. The speed with which the government move is remarkable!

Tim Hammond (Perth, Australian Labor Party) Share this | Link to this | Hansard source

Glacial!

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

Yes, glacier-like, as the member for Perth reminds me. And yet we could have agreed to this bill in its entirety if 13 of the 14 schedules of the bill had been introduced into this House. But, of course, the government wanted to move on to secondary boycotts and change fundamentally the way they operate in this country. That's interesting, given that the incidence of secondary boycotts is very, very low in this country and by comparison internationally.

Secondary boycotts have a long history in this place. It was the Fraser government who sought to amend the Trade Practices Act 40 years ago this year, in 1977, to introduce significant penalties for unions who engage in any form of sympathy strikes and really move the laws away from the industrial relations regime and into commercial and corporate law, in order to make it harder for unions to organise. If there had been a prevalence of secondary boycott conduct that needed to be reviewed, if wages were going through the roof—oh, if only they were rising, but we have a situation where wages are falling in real terms—

Mr Howarth interjecting—

In your electorate and in mine, Honourable Member, wages have been falling now over a two-year period, and they are at a lower rate of growth than they have been for 20 years. As a result, people are feeling the pinch. Cost-of-living pressures are acute. Of course, it's always difficult to make ends meet for families that struggle on medium and low incomes, but it's always more difficult when wages are falling in real terms, and that hadn't happened for a very long time, until this government took the reins. It hadn't happened for at least 20 years, arguably longer.

So the idea that the government has to use this piece of legislation to recommend increasing penalties on unions for secondary boycotts by—as the shadow Assistant Treasurer reminds me—800 times the current penalty does smack of some excessiveness on behalf of even this government. We just recently had the amendments to the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 back from the Senate, where it was passed last night. We made that bill better. It's not a perfect bill. It's not even a good bill. It's just a better bill. But there was even an effort in that legislation that was being proposed by the government to ensure that we would see coercive powers used against workers rather than used against employers who were intentionally underpaying those workers or other workers in the labour market. We limited those coercive powers, I'm happy to say—not with any help from the government, because the government voted against the amendment to limit the coercive powers, which was ostensibly the intended purpose of the bill.

In relation to this bill there are no questions whatsoever with 13 of the 14 schedules of the Harper review. I must say, it is very tardy on behalf of the government and the Treasurer to take this long to actually bring this matter to the parliament. My main concern—and the concern that's reflected in the amendment moved by the shadow Assistant Treasurer, Dr Leigh—is that there is an excessive and extreme approach to secondary boycotts; the idea that you would, for example, propose an increase to the maximum penalty for breaches of secondary boycott provisions from $750,000 to $10 million. For comparison, under the Fair Work Act, penalties related to unprotected industrial relations activity are subject to far less severe penalties of a maximum of 60 penalty units—that is, $12,600. If enacted, the maximum penalty for a secondary boycott would be nearly 800 times higher than the maximum penalty for unprotected industrial action. That is extreme, and 'extreme' is exactly the word we must apply to the way in which this government goes about dealing with workers and unions in this country.

It is relentless in its pursuit of undermining the capacity of working people in the country to organise in workplaces, whether there's a union presence or not. At every turn, in every area of public policy, if it suits them, the government will find a way to attack unions and workers because that is in their DNA. In fact, the only things that seem to unify this government are their attacks on unions and their enmity towards working people generally. It's reflected in one of the schedules of this bill, where they've gone very extreme in increasing penalties for a particular type of industrial action that is, in fact, consistent with International Labour Organization conventions that this country's ratified and extreme insofar as the penalty is concerned—and there is no evidence. Even if you were to agree with the contention that there was a problem and we should deal with this matter in this particular way, there is no evidence of a prevalence of secondary boycotts in the first place to justify—even in the conservative government's mind—that it should take this route. But, indeed, it has chosen to do so, and that's why I rise to support the amendment moved by the opposition in this place.

This has a very long history. This area of public policy is not new. Indeed, as I've mentioned, 40 years ago, the Fraser government introduced secondary boycott provisions into the Trade Practices Act and then again further provisions in 1980. The Hawke government sought to remove those provisions and failed at the time. Finally, the Keating government removed most of the provisions from the Trade Practices Act and referred these matters to where they should be placed—that is, in industrial relations legislation, if they're to be contained at all.

It is Labor's view that, yes, we need to have regulations around industrial action and, yes, we need to have limits and have requirements of employers, unions and workers to be governed within a particular regime. But we need to make sure that people have the democratic right to withdraw their labour pursuant to rules so they're consistent with International Labour Organization principles. Indeed, that includes employers, who have similar rights. We shouldn't be looking to criminalise matters that should be dealt with in the civil jurisdiction. We shouldn't be seeking to refer matters that should be within industrial legislation into the area of corporate law. That is not the view of Labor. It has never led to fewer disputes; in fact, it's led to the escalation of disputes. This sort of thinking goes right back to the HR Nicholls Society and the Institute of Public Affairs, which have a world view that unions should not exist or should be strangled to the extent that they cannot operate effectively in workplaces in this country. They do not believe there's a role for unions in workplaces in this country, and it's reflected in this one provision.

Having said that, and having emphasised that particular problem—and I wanted to do that, if you like, as the shadow employment minister—I want to finish by saying how long overdue these matters are. The review was handed down in March 2015, and 2½ years later the government is responding to its own review. It's very tardy at the very least. We will be voting against the schedule that refers to secondary boycotts and we will do our very best to make sure that this particular part of the bill before us is not enacted into law. It is not fair on working people and it's not fair on unions. For that reason we moved our amendment, and I'll be supporting that amendment when the vote comes up.

Scott Morrison (Cook, Liberal Party, Treasurer) Share this | Link to this | Hansard source

Firstly, I would like to thank those members who have contributed to this debate. The Competition and Consumer Amendment (Competition Policy Review) Bill 2017 contains a significant package of reforms to the Competition and Consumer Act 2010. These reforms are designed to simplify the law and better deal with anticompetitive conduct while supporting pro-competitive behaviour. These reforms will strengthen Australia's competition law to ultimately improve the long-term welfare of consumers, businesses and the economy. This bill implements a significant number of the competition law reforms recommended by the independent Harper Competition policy review, initiated by this government, and agreed to by the government in its response. It also implements the recommendations made by the Productivity Commission in its 2013 inquiry into the National Access Regime, which the government accepted in its response to the Harper review.

The reforms in this bill are sensible and should not be controversial. Unfortunately, however, the Labor Party, at the last minute, have chosen, cynically, to oppose schedule 6 of this bill. Schedule 6 simply does this: it proposes to align the penalties for the breaches of secondary boycott provisions of the Competition and Consumer Act to the same level as other breaches of competition law—that's all—as recommended by the Harper review and the Royal Commission into Trade Union Governance and Corruption. What the Labor Party are seeking to do is maintain a special deal for secondary boycotts in competition law. We're used to the Labor Party wanting special deals for unions. They voted against ending corrupt payments to unions, in this chamber and in the other, and now they're looking for another special deal. They want to lock in secondary boycott penalties at a lower level than that which applies to any other breaches of competition law, and they want to do so against the recommendations of the Harper review and against the recommendations of the Royal Commission into Trade Union Governance and Corruption. They're happy to protect unions that want to go down this path at the expense of small businesses, workers, consumers and the wider economy.

Workers are customers. Workers benefit from strong competition laws that make our markets work well for all customers, and they should be protected against the sorts of practices that unions engage in to frustrate small business, large business and their customers in getting the best deal possible in competitive markets. I remain hopeful that the rest of the parliament will support these sensible reforms to align the penalties for illegal secondary boycotts with other breaches of the act. No special deals for the unions will come from this side of the chamber. But for the Labor Party it is core business to continue to enshrine the sorts of protections that they seek to simply pursue their own agendas.

I note that the commencement of this bill is linked to the commencement of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016, which enacts significant reforms to section 46 of the Competition and Consumer Act 2010—the misuse of market power provision, as it is known. I look forward to this bill passing the parliament, allowing that new section 46 to come into effect as soon as possible. The new section 46 will ensure that our laws promote strong competition in our markets and a level playing field for businesses, including over two million small businesses, to the ultimate benefit of Australian consumers. It will better target anticompetitive conduct, better support pro-competitive conduct and facilitate more-reliable enforcement. Overall, the new section 46 will benefit customers and the economy by giving all businesses a better opportunity to compete on their merits.

Once again, I am disappointed that the Labor Party chose not to side with small business when it came to this matter and chose to work against competition reforms that have been a generation in coming and are being delivered by this government. Once again, the Labor Party are standing in the way of strong competition laws that protect Australian customers, because they like a big, cosy deal between big unions and big business. That's the big deal: big unions, big business and big Labor. That's what it means, and that's what they're going to want to vote for in this place, as they always do. But the Turnbull government will get on with the job of delivering these sensible reforms, ploughing on with these sensible reforms and looking forward to the support of the other place to ensure that this new change to section 46 becomes law.

As recommended by the Senate Scrutiny of Bills Committee, I take this opportunity to table an addendum to the explanatory memorandum of the bill, which includes additional information relating to schedule 11 of the bill. I present a copy of the addendum for the information of members. With that, I commend this bill to the House.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Fenner has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the amendment be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.