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

by leave—I move Greens amendments (25), (28), (29), (33), (34), (37), (38) and (39) to (43) on sheet 5729 together:

(25)  Clause 409, page 336 (lines 17 and 18), omit “that are about, or are reasonably believed to be about, permitted matters”.

(28)  Clause 413, page 340 (lines 17 and 18), omit “or multi-enterprise agreement”.

(29)  Clause 418, page 347 (after line 3), at the end of the clause, add:

        (5)    As soon as practicable after making an order under subsection (1), FWA must attempt to conciliate the dispute giving rise to the industrial action.

The following two amendments are an alternative to (32).

(33)  Clause 425, page 354 (line 2), omit “must”, substitute “may”.

(34)  Clause 425, page 354 (line 2), after “suspending”, insert “for a period not exceeding 48 hours”.

(37)  Clause 443, page 364 (lines 20 to 22), omit paragraph (1)(b).

(38)  Clause 459, page 375 (lines 9 and 10), omit paragraph (1)(b).

(39)  Heading to Subdivision A, page 383 (line 4), omit “Protected industrial action”, substitute “Industrial action”.

(40)  Clause 470, page 383 (line 7), omit “protected”.

(41)  Clause 471, page 384 (line 4), omit “protected”.

(42)  Clause 471, page 384 (line 25), omit “protected”.

(43)  Clause 471, page 385 (line 26), omit “protected”.

I also indicate that the Greens oppose part 3-3 in the following terms:

(26)  Clause 409, page 337 (lines 7 to 10), subclause (4) to be opposed.

(27)  Clause 412, page 339 (line 9) to page 340 (line 6), to be opposed.

(30)  Clause 419, page 347 (lines 4 to 29), to be opposed.

(31)  Division 5, clause 422, page 350 (lines 1 to 16), to be opposed.

(32)  Clause 425, page 354 (lines 1 to 15), to be opposed.

(35)  Clause 426, page 354 (line 16) to page 355 (line 25), to be opposed.

(36)  Division 7, clauses 431 to 434, page 359 (line 1) to page 360 (line 12), to be opposed.

As much as I would like to think that I would be able to persuade the chamber of the strength of my arguments, I suspect that I will meet some resistance to these amendments. I would like to talk about the issues around industrial action and the issues that are contained in the amendments that we are seeking to move. As I have said, they all relate to industrial action and how we think that this legislation curtails workers’ ability to take industrial action. We also note that there are many provisions in this bill as it relates to industrial action that contravene—I dread to say it again, hoping I am not going to stir up Senator Abetz too much—the conventions in the ILO.

The Greens believe that workers should have the right to take industrial action in pursuit or in protection of their economic and social interests. That has always been a very clear part of the Greens industrial relations policies which we took to the election. We believe the right of a worker to withdraw their labour is a fundamental human right. We do not believe industrial action should be unlawful or attract civil penalties. Our position is supported by the ILO which argues:

The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.

If we are turning our backs on our history with a rejection of arbitration, we need to recognise in our law the fundamental right of workers to withdraw their labour. Such a right is intrinsically linked to the freedoms of associations and expression and the right to peaceful assembly.

Any sense of fairness in the Fair Work Bill, we believe, is undermined by the denial of a fair and final dispute resolution process, coupled with the denial of the right to take industrial action. The provisions restricting industrial action in this bill are almost identical to Work Choices. So that corpse is not buried very deep; it is in a very shallow grave. The ILO were highly critical of the Work Choices provisions, criticisms that we believe apply equally to this bill. I have already articulated what the general report from the ILO Committee of Experts had to say about the numerous provisions of the Workplace Relations Act, and I will not go through those again.

It is extremely disappointing that this government has not seen fit to take this opportunity to bring Australia’s laws in line with the ILO conventions that we are signatory to. We have many amendments here that relate, for example, to pattern bargaining and multi-enterprise bargaining. I have touched on that issue previously. We also have amendments that relate to Fair Work stop orders, and we believe that we need to significantly boost the provisions in that area.

The Greens are also concerned about the suspension and termination of protected industrial action. We point out that in fact these provisions have been taken directly from Work Choices—so much for Work Choices being dead—which is why, unfortunately, we cannot just leave it buried. It is still alive; it is like a zombie. We generally oppose the provisions allowing or mandating Fair Work Australia to suspend or terminate protected industrial action, except in circumstances where the industrial action is endangering life or causing significant damage to the nation’s economy. These provisions put a further barrier in place for workers engaging in what is otherwise lawful industrial action. Employees can go through all the hoops in this bill and take lawful action, only to be stopped by one of the provisions that I just mentioned. The ILO has been consistently critical of these provisions as well.

We oppose the cooling-off period, in items 32, 33 and 34, but, in the alternative, seek to give Fair Work Australia greater discretion as to when to order a cooling-off period and to limit such a period to 48 hours. In item 35, we are completely opposed to the ability of third parties to make applications to Fair Work Australia to suspend otherwise lawful industrial action. The point of industrial action is to harm the other party in some way. In doing so, other parties may well be harmed. It is unacceptable for third parties to prevent lawful industrial action.

While we acknowledge the government is moving amendments to strengthen the test, we maintain our opposition to this provision, as we did to the Work Choice laws. Similarly, in item 36, we oppose the right of the minister to make a declaration terminating industrial action. If lawful industrial action needs to be terminated it should be done by Fair Work Australia in limited circumstances and not by a minister as a political action. Again, we oppose this provision in Work Choices and we do so, again, in this bill. We also have a series of amendments around protected ballot orders and we maintain our general opposition to protected ballot orders. We believe they are unnecessary and can hinder the right of employees to take industrial action. We do not believe the changes made by this bill to Work Choices provisions go far enough in addressing the need for a more streamlined process.

We also have amendments relating to the four-hour pay deduction for unprotected industrial action, regardless of how long the industrial action lasts. This is another provision that the government decided to keep from Work Choices. For example, workers could be 10 minutes late for work after a meeting or have a ‘stop work order’ meeting for half an hour and they would be docked four hours pay. There was also a very unfortunate case under Work Choices where construction workers were docked four hours pay for taking 10 minutes to pass a hat around for the wife of a colleague who had been killed. These examples demonstrate both the harshness and ridiculousness of this provision.

The committee inquiry also heard evidence about how the provision is counterproductive and likely to lead, in fact, to more sustained industrial action—as workers will be docked four hours anyway, they may as well take the time off. It is also counter to the proposition that workers should be paid for the work that they perform. In discussing this provision we should also be mindful that the definition of ‘industrial action’ is very broad, amounting to doing your job in a way that you do not customarily do it. Employers should also be worried about this provision. They face a civil penalty if they pay someone contrary to the provision in circumstances where it may be difficult to determine whether unlawful industrial action is being taken. Our amendments do away with the distinction between unprotected and protected action in relation to payments, as recommended by Professor Stewart. We believe these are logical and practical amendments that deal with the issue of industrial action.