Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

There are a whole host of issues to respond to in this segment of the debate. First of all we had a degree of rhetorical flourishes from senators generally, and I do not want to go into too much detail in responding to those other than to say that Minister Andrews did in fact issue a press release some 17 or 18 days ago indicating these releases. I might add that it was not just a normal one-page press release; it was a four-page press release. So there was some extensive material covered in that.

I was delighted to hear senators saying that on some occasions they believe the Senate committee system works and on others it is an absolute disgrace. Of course what that indicates is that when they get their way the system works and when they do not get their way it does not work. Really it is a bit of a churlish and childish argument. What I think we now have, by way of agreement, is that we accept that the Senate system is still working and working very effectively. When the Senate committee system comes up with good ideas, we as a government of course will take them on board. But we are the government that have been elected and we have to make the decisions as to whether the decisions thrown up by Senate committees are good, bad or indifferent. It stands to reason that from time to time we will say, ‘Good idea, we’ll adopt it,’ and at other times we will say, ‘Bad idea, we won’t adopt it.’ I do not think it a robust approach to the criticisms that are being sought to be made to try to say that the Senate system does not work when we reject certain proposals.

On one other matter—and I do not want to be too technical here, but just so that people listening do not misinterpret this—if I recall Senator Murray correctly, he talked about the High Court granting the power. In fact the power is granted in the Australian Constitution as voted for by the Australian people. The High Court’s role is to either confirm or deny whether that particular power exists. They do not have the power to actually grant extra power to the federal government. Suffice it to say there are previous examples of federal governments, especially of the other persuasion, using the corporations power in the area of industrial relations.

Dealing now with the comments made mainly in relation to schedule 10, this is a new protection of redundancy that in fact has not existed before. The government is concerned that employees bound by agreements may lose redundancy entitlements where the agreement is terminated by an employer and no replacement workplace agreement is made. If an agreement is terminated, an employee may no longer have any redundancy entitlements regardless of their length of service with their employer. Therefore, in order to protect employee entitlements, the amendments proposed by schedule 3 will preserve the operation of agreement based redundancy provisions for a maximum period of 12 months after the agreement is terminated.

Agreement based redundancy provisions will only be preserved where an employer unilaterally terminates the agreement. The government is primarily concerned that employers may seek to terminate an agreement unilaterally—that is, without an employee’s consent—in order to avoid meeting their obligations with respect to redundancy pay. Any redundancy provision in a workplace agreement, pre-reform Australian workplace agreement, pre-reform certified agreement or preserved individual or collective state agreement will continue to operate post termination of the agreement. Redundancy provisions mean all provisions relating to redundancy pay where the entitlement or obligation crystallises because of a termination or proposed termination of employment at the initiative of the employer on the grounds of insolvency or genuine operational reasons. This definition is consistent with the allowable award matters definition of redundancy pay in items 9, 19, 21 and 22. All machinery and incidental provisions will also be preserved in order to ensure the workability of the provisions.

Moving to the contributions of honourable senators, just for a moment there I did think Senator Sterle was having a lucid moment when he indicated that he was agreeing to the government’s amendments, and I was shattered when I found out that he was in fact dealing with some other amendments. I look forward to his support in relation to those. In relation to Senator Wong’s comments, we are not embarrassed by moving amendments. We as a government have always said and always accepted that, when you bring in reform legislation, be it the goods and services tax or indeed Work Choices, there will be need for amendments when and as things come up. We as a government seek to be flexible and react to those situations as they arise, and I think this is a clear example of the government being responsive to some genuine concerns.

Senator Wong raised the Tristar situation. My advice is that Tristar employees will be protected by these amendments. The redundancy provisions at Tristar are in a pre-reform agreement. It can only be terminated by order of the Australian Industrial Relations Commission. The Tristar company has guaranteed the entitlements in an insurance bond. The union agreed to this arrangement when it make the pre-reform agreement. If Senator Wong thinks the union’s agreed arrangement is inadequate, I invite her to take that up with the relevant union, which I understand is the AMWU. In relation to the Radio Rentals circumstances, I understand their employees and their unions reached a new agreement which dealt with redundancy matters.

Senator Siewert talked about a number of issues. The one that I will deal with quickly is the issue of sick leave being able to be traded away. As I understand it, at all times an employee will need to have in their, if you like, bank balance of sick leave a minimum of 15 days. Anything above that can be traded away but only in circumstances where the employee is agreeable to that taking place. This, of course, is portrayed by some as the harshness of the Howard government et cetera. I say to those senators opposite: guess where we got the idea from? Out of a pre-reform industrial award negotiated by a trade union.

If you want to visit all that rhetoric upon us as the Howard government, have the decency and honesty to do so as well with the trade union movement. But you will never do that because all you ever want to do is, unfortunately, besmirch the Howard government and say this is extreme legislation, when of course these extremes are picked out of some of the better award provisions that exist around the country negotiated by the trade union movement. I just wish there was a bit more rigour and also a bit more acknowledgement in the debate as to how the industrial relations system in this country has moved on to where trade unions themselves have seen the benefit of allowing workers to trade off their sick leave entitlement whilst ensuring that there is at all times a balance of 15 days.

In relation to the stand-down provisions, it is interesting once again to be informed. Senator Siewert and I think Senator Wong took delight in going through some of the bases on which workers could be stood down. As I have asserted about those on the opposite side from time to time, what they do is they tell half the truth, not the whole truth. What they say is that the employer has the capacity to stand down in a whole range of circumstances. That is true. What they will not tell you is that, if the employer does so unlawfully, penalties apply. Therefore, if an employer seeks to abuse those provisions and not abide by the tight provisions contained, they suffer a real penalty. I would invite those senators, when they engage in the detail of this debate, to tell the whole truth, to indicate the totality of the provisions and not just half.

In relation to the standing down of employees, I could have fun and ask where you would find the following:

14.2 An employer may deduct payment for any day or part of a day on which an employee cannot be usefully employed for the following reasons …

…         …         …

14.2.2 a breakdown of machinery—

I think that was an example Senator Siewert referred to—

14.2.3 rationing of power or the lack of fuel or transport;

14.2.4 any cause for which the employer cannot reasonably be held responsible ...

How wide is that? How outrageous! This is the sort of thing you would expect from the extreme right-wing Howard government that wants to grind the workers into the ground. Oops, sorry—problem: it was a horticultural industry AWU award negotiated in the year 2000.

So if you want to visit all this empty rhetoric upon the government, do your research and find out that some of these provisions are in fact contained in industrial awards that are six years old and have worked well. In reading union negotiated awards and advising ourselves about the different awards and different approaches, from time to time we have found good information and good ideas in them—and we are willing to adopt them. But, when we adopt union award provisions, do not come in here and visit upon us all this rhetoric about our somehow being extreme. If you want to do that, you will have to look in the eye the trade union officials who negotiated these awards and say, ‘You’re no better than John Howard.’ I do not know which particular union negotiated this, but chances are, like John Howard, the trade union officials were concerned to get the best possible deal for the workers. That is why it is in these awards and that is why it is in this legislation as well.

The amendment would insert a right for employers to stand-down employees without pay in the circumstances outlined. The scope of the provisions is similar to the stand-down clause in the Metal, Engineering and Associated Industries Award 1998—an even earlier award which has been in operation for some eight years. The amendments provide a number of remedies to deal with unauthorised stand-downs—and that is the countervailing or balancing provision. As a result, the claims being made by those opposite are even more extreme than what they say about the government’s legislation. A lot of this is, of course, informed by what has been in the industrial system for quite some time. If the Howard government adopts in legislation the views and approaches of trade unions in particular awards, it is deemed to be extreme, nasty and grinding workers into the ground. But, of course, if trade union officials negotiate these agreements then somehow it is all okay. There is in fact enhanced protection in relation to stand-downs, which has not been provided for before, by providing the penalties I have referred to in relation to any breach of the particular parts of the schedule that are being referred to.