Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

The Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016, in my judgement, is not intended to make industrial agreements involving firefighters fairer or simpler to negotiate and is not intended to preserve or defend the role of volunteer firefighters. This is nothing more than a piece of political mischief-making. While claiming to defend volunteers in the Country Fire Authority brigades in Victoria, the government's real aim is to vilify and undermine professional firefighters and their union. To do so, it has cobbled together legislation that raises more serious problems than it purports to solve. This bill is so ill-considered that its constitutional status is dubious. Numerous legal advisers and experts have examined the government's legislation and argue that it would be vulnerable to a challenge in the High Court. I appreciate that is a claim that is made on numerous occasions about legislation. There is only one group of people who can make a judgement as to whether a bill is unconstitutional and that is the High Court itself. But there is no doubt that there are substantive arguments to support a challenge being actually launched on this legislation. Only the justices of the High Court will determine the validity of that, but there is absolutely no doubt that this bill is vulnerable to a challenge.

At the very least, this bill has demonstrated what happens when a government, desperate in an election, seeks to capitalise upon a dispute in one particular region of the country. This is a dispute that has gone on for over three years. It is a product of mismanagement by the previous Liberal government in Victoria and a similar set of arrangements we saw entered into with various paramedical legal services in the state where there was, of course, a further protracted dispute engineered by a conservative government and the failure of an agency to deal with its responsibilities—a quite biased and politically engaged agency which was quite hostile to the labour movement. We have known of cases where the management of the CFA in Victoria in previous elections has intervened in electoral processes in the state, and we know the actions that that body has taken by the engagement of various union-busting outfits in an attempt to undermine an agreement-settling process. That is why this dispute has gone on for the length of time it has. That is why there has not been a settlement for three years. There is no willingness by the CFA to actually enter into a proper negotiation process to secure a settlement. Until recently, that had been the case.

We know that the dispute in Victoria was politicised by the Liberal Party; we know of the use of Liberal Party volunteers masquerading as firefighters; we know of the Liberal Party's use of various CFA websites to raise money for the Liberal Party; we know what has happened in many country areas where an attempt was made to vilify trade unions, to vilify the Labor Party; and of course we know the electoral result in Victoria. I take the view that the swings to Labor in Bendigo, for instance, demonstrate that there was actually a swing to the Labor Party through this dispute, so it did not quite work out the way that was intended. I know that in boxes around Kilmore, which of course was an area devastated by the Black Saturday bushfires, Labor's vote actually tripled. I know of circumstances in many other areas where media leaks claimed, for instance, that in booths in Jagajaga there was a great outpouring of hostility, while the reality was that the Labor vote improved. So in some respects the attempts being made by the Liberal Party to polarise this issue and attempt to demonstrate the evils of trade unionism were not carried through to the ballot box itself. That does not change the fact that, while the electorate was not fooled, the actions themselves were not undertaken.

What we have seen is the Liberal Party in Victoria use distortions and misrepresentations, particularly through the Herald Sun, to vilify professional firefighters. We know that 18 front pages in the Herald Sun might as well have been printed as blank sheets of paper with the effect they had, but the consequences were to attempt to undermine the moral and authority of firefighters in the state. No matter how many times you state an unfounded fear the consequence there is really aimed at the organisation itself, and that is the case with the CFA.

Clause 7A in the EBA negotiated between the board of the Victorian CFA and the United Firefighters Union—and I might say, at the insistence of Mr Julius Roe at the Fair Work Commission—is to make sure that the role of volunteers was not altered by the agreement. Nothing in this agreement—I repeat: nothing in this agreement—prevents volunteers from providing the services that they would normally provide. So the role of the Victorian volunteers, who do such a commendable job and represent such a broad cross-section of society—they are not just conservative people, they are not just the captains of the local social set: they are actually made up of all sorts of folks and they undertake such a remarkable job—is not actually under threat, no matter what the National Party says and no matter what the Liberal Party says as a political device to try to mobilise support for those organisations. It is also clear that there is no provision in the EBA which countermands the provisions of the state's emergency services legislation.

What was demonstrated, and what my colleague Senator Bilyk made very clear just before me, was that Professor Andrew Stewart from the University of Adelaide, who is very highly regarded for expertise, advised the Senate inquiry that the chief fire officer gives directions or authorises operating procedures under the CFA Act, and those directions prevail over anything that is contrary or might be alleged to be contrary in any EBA. That is the law. There has never been any doubt about the law in Victoria, but in order to keep spinning the line that the volunteers have threatened the government it has continued to pretend that there might be some other course of action available to it. Now I know this might play down well at the editorial suite at the Herald Sun and their deep, deep antipathy to the Victorian Premier and their deep antipathy to unions and their deep antipathy to workers who are unionised, but the facts remain the same.

This bill fundamentally ignores the problem of the constitutionality of these measures: the fact that the Commonwealth legislation might impair, curtail or weaken the capacity of the state to function as an autonomous entity. The irony will not be lost on those who spent years listening to the coalition's talking and beating the drum of state rights. Of course we know that in other areas the issue of states' rights is sacrosanct, unless a case comes before the parliament or before politics of this country for a bit of union bashing—then anything goes. The minister, being so intent on smearing the union of the professional firefighters, made it very clear she had not even bothered to actually look at the detail of the EBA. Senators will recall the opinion piece which was published in the Herald Sun on 22 August in which she claimed that the seven paid firefighters had to be present before volunteers could be deployed to fight a fire. She also said that paid firefighters could only report to other professionals. These claims were just wrong. It is not about the facts here, is it? It is about the smear.

This is a political campaign run by the Liberal Party aimed at smearing professional firefighters and smearing the Labor government in Victoria. The minister, who rarely shows any embarrassment at all, had to at least acknowledge when she was lost for words with a television interviewer that she could not identify where the provisions in the EBA were in terms of the claims that she was making. I say that this is a serious political problem for this country, if they think that the Commonwealth can intervene for the settlement of an exasperation, in this case, of an industrial dispute in one state.

What we do know is that the Commonwealth does have powers to regulate wages and employment conditions. But, when it comes to the question of state government employees, the situation is a bit more complicated. The High Court has made this very clear. The court itself has set limits. In 1995, in a case involving the Australian Education Union and the Victorian government, it found that the Commonwealth cannot direct a state on who or how many people to employ. Surely this bill presents us with a difficulty about how this measure will actually be implemented and be consistent with previous High Court decisions? This bill will allow a federal body, the Fair Work Commission, to override the decisions of a state body, such as the Victorian CFA or the Victorian government, when it decides how to structure its relationship with its employees and its volunteers.

The Department of Employment states that it has been advised by the Australian Government Solicitor that this bill is within the powers of the Commonwealth. Well of course they always say that, don't they? In all my time in government I have never known a bill to come before parliament which the Solicitor-General had not advised will survive a High Court challenge. We know the difference is, and the reality is, that that does not necessarily bind the High Court. Just because there is an opinion—an unpublished opinion, an unverified opinion—presented by the Solicitor-General that does not in itself make it a fact, because these are issues that will be tested in a court of law, namely the High Court of Australia.

We know the problem here is that the government does not release the Solicitor-General's opinions, and it does not want those opinions to be subject to the scrutiny of other constitutional experts—it does not want the debate about that particular issue. We know that there is a contrary view by eminent jurists in this land. And while we cannot prejudge the outcome of a challenge, I say it is absolutely arguable that there is a case for it to be put before the High Court. And what is clear in these circumstances is that if the court eventually upholds the legislation, then there will be, of course, even then protracted uncertainty about the status of the firefighting arrangements in the state of Victoria.

It has been mentioned that this is a matter that is currently before the Supreme Court of Victoria. We await their decision. But what incredible timing, as we move into summer—what extraordinary genius at work here as we move through the bushfire season—to actually create this level of uncertainty when there is a state case currently in play. I find it extraordinary. In response, Victorian firefighters and emergency workers are hampered because of this protracted matter. It will not, however, be because of the EBA now. What this Commonwealth government has done is actually taken this upon itself, and it is the one that we should look to with regard to the future status of volunteers because of this legislation. As I said, what an extraordinary proposition as we come into the firefighting season.

We have heard the argument that has been put by the royal commission into the bushfires in Victoria: about the inadequacies of the current arrangements in play prior to this EBA being put in place, about the failure of the CFA to get its administrative practices in order, and about the need for there to be substantial change—change which reflects a pattern across the country I might add. That is what this EBA does: it gives you a much more national approach to that. But what we do know now is that the Commonwealth—for narrow, sectional, sectarian motives—have sought to intervene because they thought it was going to be an electorally appealing proposition, and they are now going to have an opportunity, as they see it, to bash another union. That is their stock in trade: 'We don't have to worry about the facts in these circumstances. We don't have to worry about the consequences in these circumstances. What we have to do is intervene in a dispute that is three years old, close to resolution, and make it a more protracted problem than it already is.'

What I am concerned about is that this is a grubby piece of union bashing masquerading as a bill to save a great Australian institution. No-one pretends that volunteer firefighters do not embody some of the great features of Australian civic duty, but the Turnbull government has pretended that their roles in Victorian bushfire responses are actually threatened by an EBA. The safety of Victorians is not something that should be a matter of political contention. You would have expected in a country such as this, where we are ravaged by bushfire on such a regular basis, that there would be some things that would be above sectarian political abuse. But you would be wrong, because that is what this legislation is doing. This government, with this legislation, is in fact making the situation much worse, making the capacity of the CFA to do their job properly much more difficult for them, and, for narrow political reasons, the government is seeking to pursue its political objectives of trying to belt professional firefighters. This is a bill that should actually be withdrawn. They should leave the state government to resolve the matter with the union, with the volunteers and with the CFA. This is a matter before the courts in Victoria, and that is where it should be presented and the matters dealt with in that context.