Rachel Siewert (WA, Australian Greens) Share this | Hansard source

by leave—I move Australian Greens amendments (4), (13), (15) and (16) on sheet 5729 together:

(4)    Clause 12, page 25 (line 13), omit “172(1)”, substitute”172(1A)”.

(13)  Clause 172, page 161 (lines 5 to 23), omit subclause (1), substitute:

Enterprise agreements may be made about permitted matters

        (1)    An agreement (anenterprise agreement) that is about one or more permitted matters may be made in accordance with this Part.

Note:   An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

     (1A)    All matters, other than matters which comprise unlawful terms, are permitted matters.

(15)  Clause 194, page 182 (lines 21 to 27), omit paragraph (c).

(16)  Clause 194, page 183 (lines 1 to 13), omit paragraphs (e) to (g).

These amendments relate to collective agreements. The Greens are generally very supportive of the bargaining provisions in the bill. We support collective and good faith bargaining provisions. Our key concerns go to the content of agreements and the restrictions on the level at which good faith bargaining can occur. As has been made clear, the Greens believe parties should be free to agree on any matters, apart from unlawful matters, in their agreements. Our amendments (13) and (14) provide for this. We also note in the ALP’s Forward with Fairness policy that ‘bargaining participants will be free to reach agreement on whatever matters suit them’. Instead of sticking to that policy, the government have taken us back to the ‘matters pertaining’ formula, with some exceptions. While acknowledging that matters pertaining to the employment relationship do not include union activities, the bill has to provide for them and pay deductions separately. What this says to us is that the matters pertaining formula is inadequate.

This part of the bill came in for severe criticism from academics. Professor Stewart commented that the law surrounding the concept of matters pertaining is ‘confusing, uncertain and downright inconsistent’ and he calls for the concept to be ‘given a decent burial’. Professor Stewart is also concerned that restricting the content of agreements will perpetuate the use of side agreements, which are ineffective and unproductive. Of particular concern for the Greens, as we as a community face the prospect of catastrophic climate change, is that the bill does not allow employees to engage in bargaining with their employers over environmental or climate change initiatives. Dr Buchanan agrees with us. He said:

As we move to an increasingly carbon constrained future it is unclear why our labour law is clinging to nineteenth century notions of managerial prerogative and thereby limiting the ability of the parties to enforceable agreements to reach innovative solutions to the problems they encounter.

We in fact agree with the ALP’s policy document, which states:

… as long as bargaining participants bargain in good faith and are able to reach agreement, they should be free to do so without the need for government intervention or to comply with complex procedural rules and requirements.

Restricting the content of agreements is also contrary to ILO determinations. The ILO has noted that:

Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention on the Right to Organise and the free and voluntary nature of collective bargaining.

Amendments (15) and (16) remove from the definition of ‘unlawful matters’ terms which provide better provisions relating to the employment period for unfair dismissal, industrial action and right of entry. The Greens see no reason why, if parties wish to agree on such terms, they should be prevented from doing so.

These amendments in fact implement the government’s policy and original intent. We believe this is a particularly important set of amendments because we strongly believe in collective bargaining and that parties should be able to reach agreement on whatever matters they wish. This came up repeatedly during the Senate inquiry. We urge the chamber to support these amendments. However, I ask for the question on amendment (13) to be put separately, if possible.