Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

We are considering the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. This bill creates a legislative bridge from the existing industrial relations system, underpinned by the Workplace Relations Act 1996, to Labor’s new system, underpinned by the Fair Work Act 2009. The bill is necessary as some parts of the existing system remain ongoing under the new system. Some parts will remain ongoing for a limited period, which is called the bridging period, and other parts are abolished completely. The attitude that we as a coalition will be taking to this legislation is, I must say, still a matter of some reflection. We understand that the Labor Party, despite having moved 120 amendments to their own legislation in the House of Representatives, are still going to be introducing into this chamber another tranche of three lots of amendments to this legislation. They have asked us to engage in the second reading debate on this legislation without having seen the amendments.

I have a funny feeling—and I might be able to predict—that there will be a requirement for a definition in this legislation along the lines that Senator Fielding negotiated with Ms Gillard in that shameful episode in the Senate where Senator Fielding joined with Labor to pass the Fair Work Bill 2009. That was the occasion when this Senate had unanimously, in the previous third reading debate, buried Work Choices good and thorough, but Ms Gillard and Senator Fielding went back to the grave site, unearthed it, threw in jobs, threw in small business and then covered it over again. That was the effect of the amendments that unfortunately Senator Fielding was able to effect with Labor and the Greens on the last occasion.

The very small deal that Senator Fielding was able to achieve—might I add, at great expense to small business overall—was that the definition of ‘small business’ would be addressed in a transitional sense. As I read the current legislation before us, those definitions have still not been presented to the Senate and to this parliament. So that is one lot of amendments that Labor still have to move. I understand that Labor will have to move some further amendments dealing with the rules of state registered unions, and regulations will need to be allowed for to prescribe how state based unions can become part of the federal system. I would have thought that these matters were well and truly on the agenda, like the definition of small business, which should have been dealt with previously.

It is not often that I would agree with the National Tertiary Education Union, but they have made a sensible submission to us—which I assume the government is willing to accept as well—which is that industrial action and secret ballots which have already taken place before 1 July 2009 should be allowed to continue to clothe with legality industrial action that takes place after 1 July 2009. That seems to me to be a sensible amendment to make to the legislation. I understand that the government is interested in it and, in fairness to everybody, it seems a sensible course of action.

But why is this not in the raft of legislation that is before us? I am holding this legislation here, and it really is a huge amount of legislation. I remember, when Work Choices came in, Senator Wong condemning the amount of paperwork involved in relation to that legislation. For consistency’s sake, I trust that Senator Wong will have a look at the Fair Work Australia Bill and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 and tell us if there is more paperwork involved in the approach that the current government is taking to industrial relations. I dare say we all know what the answer will be to that challenge: she will not take it up, because she already knows the answer. Can I, in general terms, indicate that we the coalition, despite not being provided with all the information, are minded to be supportive of this legislation and will be supportive of the three areas of amendment that I have been able to identify as clearly the government’s responsibility. Can I flag, however, that in the committee stage I will be moving, on behalf of the coalition, nine amendments dealing with a range of issues but concerned with protecting small businesses in particular. We said in relation to the Fair Work Australia Bill—and I say on behalf of the coalition yet again in relation to this transition legislation—that jobs, small business and excessive union power are the three criteria on which we will judge the legislation. Once again small businesses will be hard-hit if some of the amendments that we are seeking are not made.

Can I point out in particular the huge cost to business in relation to the issue of award modernisation. Reality has finally mugged Ms Gillard in relation to restaurants and catering. She has now advised the Australian Industrial Relations Commission, I understand, that there are certain factors—in fact she wrote to the Hon. Justice Giudice on 29 May 2009—indicating that data from the Australian Bureau of Statistics show that cafes, restaurants and catering services are characterised by comparatively low profit margins and high labour costs as a proportion of total expenses. That, of course, is part of her rationalisation for doing a backflip for restaurants and caterers. It is a welcome backflip, but we are not sure that it is actually going to pay dividends. But if that is the rationale, the consideration, that Ms Gillard has applied in relation to restaurants and caterers—namely, that the Australian Bureau of Statistics shows that cafes, restaurants and catering services are characterised by comparatively low profit margins and high labour costs as a proportion of total expenses—I would invite Ms Gillard to put on a pair of gumboots—and it is raining in some areas of rural and regional Australia, thank goodness—and visit some of the horticultural pursuits, like the ones in my home state of Tasmania; for example, the stone fruit industry and the berry fruit industry.

In these industries the fruit has to be picked not on the day that Ms Gillard determines but on the day that nature or God determines. We know that Ms Gillard has delusions of grandeur, but can I say to her and to those who are so busily pushing this nonsensical one-size-fits-all approach to industrial relations: if you put a 30 per cent weighting on the cost of picking fruit on a Saturday or Sunday, it will no longer be viable for those businesses to pick fruit on those days and, as a result, market supplies will be adversely impacted. Fruit that starts rotting will impact on unripened fruit and the consequences will be huge. The consequences will be substantial. Knowing some of the berry farmers and stone fruit farmers as I do, I know that they fit into the category that Ms Gillard told Justice Giudice about on 29 May 2009—that is, they are ‘characterised by comparatively low profit margins and high labour costs as a proportion of total expenses’.

In fairness, the pharmacy sector might be seen—and I note that I am wearing their tie today, albeit by coincidence—to be a bit more profitable than other sectors. Interestingly enough, with award modernisation they too will be severely impacted. But do you know who will really be impacted? It will not be the pharmacists; it will be the students and casual workers. You see, a lot of the pharmacists engage university students to do those pill packets that are done up especially for aged-care facilities, where older people are provided with a morning, noon and night schedule of tablets for the day of the week. This is all set out for them and delivered once a week. You need careful workers to do that. I know pharmacies that employ university students and that say, ‘We don’t care when you do it, as long as they are ready for delivery Monday morning.’ Most university students say, ‘We study, have lectures, tutorials et cetera nine to five, Monday to Friday, so can we work Saturday and Sunday?’ It suits the students, it suits the pharmacies and it gets the job done. But all of a sudden there will be a cost impost for students to work on a Saturday and Sunday, which will price them out of the market.

So who are the people who are going to suffer? Not the pharmacists; I am sure they will get around it. It will be the university students, who of course are already being attacked by this government through their attempts to get rid of the opportunity of a gap year. But these are the real on-the-ground impacts of this Labor government’s legislation. If you are a pharmacist you are not exempt. If you are a farmer or a horticulturist you are not exempt. If you are a restaurant caterer you are not exempt. Senator Arbib, in a most undistinguished first question time today, when asked about what was unique about restaurants and caterers as opposed to all these other areas, was unable to give an answer.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

He had no idea.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I think Senator Ronaldson is right: he had no idea. He thought he was on Sky News again and could just talk his way out of the issue rather than abide by standing orders, which in fact require direct relevance to be provided to the questions asked.

So what we have here is once again policy on the run. There are three lots of amendments that I am predicting Labor will need to introduce to have this legislation in some sort of shape, but we cannot address that in our second readers because we do not see the actual amendments—and that was after a raft of 120 amendments that had to be moved in the other place. We are concerned about award modernisation impacting on small businesses, and I trust that I have outlined that. I can indicate that we will be moving amendments in relation to the no-detriment rule, relief from increased labour costs, default superannuation, state based differences in modern awards and also the union representation orders.

It is important that we get the workplace relations regime right in this country, especially at this time. If there is any disincentive to employ, guess what? Employers will not employ. Employers are actually called employers for a very simple reason: they employ people. The Labor Party often forget that. And the more difficult you make it for employers, the less likely they are to employ. That is why we have already seen a substantial increase in the unemployment rate in this country. Sure, the global financial crisis is having an impact, but can I tell you from anecdotal evidence all around the country that it is obvious that a lot of businesses are shedding workers already in anticipation of the new regime that is going to come into place on 1 July.

As I have said on a number of previous occasions in this debate, Work Choices is dead, and we as a coalition and as an opposition acknowledge it. But one thing we do say to the Australian people is that we were motivated by one thing, and that was to try to make it easier for employers to employ people. We dared to dream at the time that unemployment could have a four in front of it, and people told us we were mad; you would never get unemployment below five per cent. When we did put in Work Choices, unemployment fell. Yes, we did fail to have a four in front of it at the end. You know why we failed? Because it had a three in front of it; we got unemployment down to 3.9 per cent. When you think of the social good and the social benefit that does for a community, to see unemployment fall by a full one percentage figure or more down to 3.9 per cent, that was our motivation.

We accept that we got it wrong because some elements of Work Choices were too harsh and that needed to be addressed, and the people spoke. But one thing I would say to those opposite is that what you are doing now is swinging the pendulum back not only pre Work Choices, not only pre Howard, Costello and Kernot changes of the early years of the Howard government but even further back to before the Hawke-Keating reforms. This is really the revenge of the dinosaurs in the Labor Party and trade union movement, those who would not have truck of Work Choices—and I accept that—but also never had truck with the Howard-Costello reforms or the Hawke-Keating reforms. In a time when people are desperate to keep their jobs, when employers are finding it difficult to keep employees, the Labor Party and those that manipulate it from behind from trades halls around the country are now swinging the pendulum back way, way beyond pre Work Choices to pre Hawke-Keating, and that is going to have flow-on consequences for employment levels. I know that Labor will say that it is the global financial crisis. They will hide behind it. But they will know in their heart of hearts that that is not the full picture. It is their industrial relations changes that will be part of the driver of the ever-increasing number of unemployed. This is Labor’s legislation and Labor will bear the responsibility of it.

Having said that, I flagged the areas where we will be moving amendments in the committee stage. I would be interested if the minister could confirm in the summing-up speech that there will be further amendments moved by the government and, if so, whether the three areas I have indicated are to be the subject of amendment. If not, we might be minded to move amendments, and of course there may be other areas of amendment above and beyond their 120 amendments that have already been moved in the other place.

In general we will be supporting the passage of the legislation but can indicate that we have very grave concerns about certain areas of this legislation, in particular how it builds on the unfortunate events when the Fair Work Bill was passed by the Senate where the grave on Work Choices was reopened and jobs and small business were thrown in as well, which will be of great detriment to our economy, to the workforce and to small business, who after all are the engine room of job creation in this country.

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

I rise tonight to speak on both the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. I will refer to these bills as the ‘fair work transition bill’ and the ‘fair work referral bill’ respectively.

With the passing of Fair Work Act in March this year, Australia is moving away from what we believed was the profoundly unjust Work Choices regime of the Howard government. The Greens have consistently argued for a fair, just and sustainable industrial relations system to replace Work Choices. We are not satisfied that the government has moved far enough from and truly repudiated all the unjust elements of Work Choices, but the Fair Work Act is now here and today we are focusing on the process of transitioning away from those elements of Work Choices that the act amended.

The fair work transition bill is important as it deals with the most immediate effects of changing from Work Choices to the Fair Work Act. The Greens are generally supportive of the approach taken by the government in this fair work transition bill. We do, however, have a number of concerns that we believe should be addressed in the interests of working Australians.

We are particularly concerned about unfair Work Choices agreements. The biggest problem in the government’s approach to transitioning from Work Choices is that the government is leaving thousands of employees stuck on unfair Work Choices agreements, including AWAs. This chamber has heard time and again about the travesty of AWAs: how they ripped away working people’s conditions, made them vulnerable to their employer and undermined collective bargaining. AWAs were at the forefront of the union movement’s Your Rights at Work campaign against Work Choices, which assisted the ALP into government. AWAs are at the forefront of the ALP’s promise to abolish Work Choices. As the Deputy Prime Minister said in her second reading speech on the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 in March last year:

All last year, every member now sitting on this side of the House campaigned in electorates all over this country on our commitment to abolish Australian workplace agreements and to introduce Labor’s new system.

When the Australian people read our policy documents, or heard the Prime Minister speak, including at our campaign launch, or listened to me debate the previous Minister for Employment and Workplace Relations they were left without a doubt that central to our workplace relations policy was a commitment to rid Australia of all statutory individual employment agreements

              …              …              …

We believe that … there is no need for AWAs or any statutory individual employment agreement. The essence of such agreements is that they override the safety net.

These are the sentiments that the Greens agree with. We too campaigned vigorously against AWAs. We also passionately believe that the safety net should be there for all workers and should not be able to be undermined by individual agreements. Yet, despite the ALP’s promises, AWAs are still with us and will be for many more years to come. Work Choices will not be dead until the last AWA is terminated. Work Choices is having a slow and—for those stuck on unfair AWAs—painful death. The Greens have held a consistent position since before the last election that substandard agreements—individual or collective—should be able to be terminated and the employee employed on the more favourable conditions of the award or superior collective agreement that covers the employer.

We moved amendments to the Workplace Relations Amendment (Transition to Forward with Fairness) Bill in 2008 to provide a mechanism for employees to terminate unfair AWAs. These amendments were not supported by the government and many workers have unfortunately stayed on unfair AWAs ever since. We are going to try again with this bill. We will be moving an amendment to give Fair Work Australia the power to terminate or vary unfair workplace instruments where they disadvantage the employee compared to the new safety net. The substance of this amendment was recommended by the ALP senators in their report on the Senate inquiry into this bill. We will also move another amendment, recommended by Professor Andrew Stewart and adopted by the majority report of the inquiry into this bill, that a new enterprise agreement will automatically replace an AWA or ITEA without the need for conditional termination provisions. The conditional termination provisions do not address the problem of employees stuck on unfair AWAs or ITEAs. Neither employers nor unions believe that they will be used effectively. The requirement that an employer must agree to a transition termination prior to the nominal expiry date of the AWA or ITEA renders them useless for the workers who are most in need of relief from AWAs.

Too many workers have been subject to inherently unfair workplace agreements due to the aberration that was Work Choices. In providing a fairer safety net comprising the National Employment Standards and modern awards, the ALP government has an obligation to ensure that workers cannot continue to be employed on conditions that fall below this safety net. The ALP government is failing to meet this most basic of obligations to the workers who suffered under Work Choices.

Another area of concern to us is the award modernisation process. It always makes me shudder when I agree with the opposition on IR, although I think we have different perspectives of award modernisation. Award modernisation has been attracting a great deal of criticism recently from both employers and some unions. The Greens voiced our concerns about the process right from the very beginning. We were concerned that the process would result in a watered-down safety net, to the detriment of workers. While we agree that awards do need to be modernised, we do not want to see the fundamental value of Australia’s unique award safety net eroded.

The government has set the Australian Industrial Relations Commission a massive undertaking, which was always going to be difficult to achieve in the time frame provided. There were always going to be winners and losers out of this process. The government’s intention that the process would neither disadvantage employees nor increase employer costs was never going to be realised in such an exercise. For the Greens, the success of the award modernisation process is whether or not it results in a comprehensive safety net of wages and conditions that underpin a decent standard of living for workers.

We note and support the intervention by the Minister for Employment and Workplace Relations to ensure that no award can remove from its protection workers who earn less than $100,000 a year. The Greens were very concerned to hear of the Clerks—Private Sector Award and, in particular, the provision exempting employees on as little as $44,000 a year from key award conditions. This decision clearly contradicts the award system envisaged under the Fair Work Act. We also note the minister’s intervention to create a separate clerks and restaurants award. We would be very concerned if the minister makes a habit of undermining her own independent process in the interests of the lobby groups that can shout the loudest.

The Greens support the take-home pay provisions in the bill. They are necessary to ensure workers do not lose pay as a result of the safety net shifting beneath them. We agree with submissions from various unions to the Senate inquiry that Fair Work Australia should be able to take into consideration the loss of significant conditions as well as financial considerations in making these orders. We note too that the majority report of the inquiry from the ALP senators supported this position. Such an extension is vital for many of the most vulnerable award reliant workers, who will face potentially significant changes in their working hours due to the award modernisation process.

We do not support the amendments put forward by the opposition for cost recovery orders for business. We note that the AIRC will be determining transitional arrangements which can last up to five years. The Greens, unlike the Liberal Party, believe in the need for a strong, robust and adequate award safety net. It is an essential part of building a fair society. The opposition’s amendments, we believe, would allow employers to essentially get exemptions from awards that would undermine the safety net.

I also want to specifically note the provisions in the transitional bill for a two-year review of modern awards, which was included as a result of an agreement with the Australian Greens when we were debating the Fair Work Bill. This earlier review was generally supported in submissions to the inquiry from both businesses and unions. The Greens believe an earlier review is important in ensuring that the new award safety net is adequate.

The Australian Greens continue to be concerned about the long-term consequences of the new award system under the Fair Work Act. As we stated in the debate on the Workplace Relations Amendment (Transition to Forward with Fairness) Bill way back in March 2008, we want to see a fair, robust and relevant award system. We believe that awards should provide a comprehensive safety net for workers on an industry or occupational level that is flexible enough to allow for industry-specific conditions but secure enough to provide appropriate protections. Awards must be living documents. They must be able to adapt to the changes in community standards. Time will tell if the modern awards system will provide the fairness Australian workers expect.

I want to make a brief comment on a notable inconsistency in the bill, which is the government’s approach to bargaining and industrial action currently underway. Unlike most other processes dealt with in the fair work transitional bill, bargaining must begin again from 1 July. This also means that any authorisation for industrial action becomes void and employees will have to start the process again. Given that the regime for taking protected industrial action is very similar under the Fair Work Act to what it was under Work Choices, this seems another unnecessary impediment to the right of workers to take industrial action. I understand there may be a particular problem for employees of Telstra and in some universities who have long-running authorisations in place. We urge the government to address this issue and ensure that parties who are undergoing bargaining now and have industrial action authorisations in place are not disadvantaged by the transition to the Fair Work Act.

I also wish to briefly comment on the low-paid bargaining stream. In the debate on the Fair Work Act, the Australian Greens moved an amendment to delete the requirement that an employer must not have been covered by an enterprise agreement in the past to be subject to a low-paid workplace determination. Our amendment was not supported by the government. The fair work transitional bill extends that requirement to any collective agreement made in the past. This means that an employer may be exempt from the low-paid bargaining stream if they made a collective agreement years ago or if they made a Work Choices non-union collective agreement where actual bargaining may never have occurred. In places such as Western Australia where we have had unfair statutory individual agreements for many years, in fact, before AWAs, this provision could undermine the intention of the low-paid bargaining stream—a stream which the Greens strongly supported. It is an unnecessary and counterproductive limitation on accessing a low-paid workplace determination.

The Greens support the low-paid bargaining stream provisions. They are vitally important in encouraging and achieving genuine collective bargaining in low-paid industries, which are often female dominated industries. We do not understand why the government initially sought to limit their application. We are pleased to see that the government is partially addressing this issue with its amendments with the effect that collective agreements that have ceased to operate will not exempt an employer from low-paid bargaining. We would prefer a broader amendment, as recommended in the majority committee report, to the effect that Fair Work Australia is given the discretion to decide on a low-paid workplace determination after considering all the circumstances, including past bargaining.

The final part of the transitional bill that the Greens have significant issues with is the new representation orders. In our view this as another example of the government putting the interests of business ahead of the rights of workers. The purported reasoning for these new orders is to deal with the new rules for right of entry and the fears expressed by business that demarcation disputes between unions will increase as a result. We note the new orders are not limited to right-of-entry disputes. Indeed, there need not even be an actual dispute at all. We note the amendments the government moved in the House to clarify that a dispute need only be threatened, impending or probable. Like the senators in the majority report on this inquiry, we do not believe these provisions are necessary. We believe they will have the potential to breach the rights of workers to freedom of association and will be used by employers to pick and choose the unions they wish to deal with. If this occurs it will be unacceptable.

I now wish to make some brief comments in support of the two sets of amendments moved by the government in the House. Firstly with respect to outworkers, the Greens are pleased the government has been prepared to listen to the needs of these most vulnerable workers and to act to ensure more complete and appropriate award protection for these outworkers. The Greens have a longstanding commitment to ensuring appropriate and robust protections for outworkers. The analysis and recommendations made by the majority report on the inquiry into the transitional bill points to unfinished business, and we note the government has not acted on all the recommendations. The Greens will be keeping a close eye on the operation of the Fair Work Act and the transitional provisions in respect of outworkers to ensure the utmost protection for these workers is assured. Secondly, we note the insertion of a requirement that Fair Work Australia provide a report on the operation of the unfair dismissal system after three years. The Greens support this proposal. We think it is important for accurate and useful data to be collected on the unfair dismissal system to inform the debate on this issue and on the operation of the unfair dismissal system under the Fair Work Act.

I would like to briefly turn now to the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. The Greens support the bill and understand the necessity for Victorian workers to be brought within the ambit of the Fair Work Act. We also note that the Queensland, South Australian and Tasmania governments have indicated in-principle support for referring powers in respect of private sector employees. This however does not assist non-federal system employees in my home state of WA.

The Greens have been concerned for some time about the plight of non-federal system employees, especially those in the community and social services sector. As we discussed in the debate on the Fair Work Bill, many of these employees do not know whether or not they are in the federal system given the technical and complicated determinations of whether their employers are constitutional operations. If they are not in the federal system then while they may be currently covered by transitional instruments these instruments will be terminated in 2011 and the workers will lose important protections. We appreciate that the government is attempting to deal with the jurisdictional mess by negotiating with the states to refer their powers. Unfortunately the Western Australian government has specifically ruled out such a referral. This situation is a consequence of moving away from the conciliation and arbitration power to a reliance on the corporations power. It is an issue that is not going to go away and the government must ensure that those workers caught out by its law under this approach are protected.

The Greens will be moving a number of amendments in the committee stage of this debate, as I indicated, particularly to deal with the issue of unfair AWAs. We will continue to raise this issue because we believe it is an extremely important issue. The government made a commitment that AWAs would cease. That commitment has not been followed through. There are workers around Australia who will continue on unfair AWAs for a good many years. It seems nonsensical to me that the government does not move to address those and to support those workers who find themselves on AWAs that are unfair. The government has mechanisms it can use to address this issue and it should take the opportunity to support amendments that get rid of unfair AWAs. I will be going through the details of those amendments once we move to the in-committee stage consideration of amendments.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I have great pleasure in rising to speak in support of the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. These bills contain the necessary transitional and consequential changes to ensure that there is a smooth and fair transition to the new workplace relations system. Importantly, the provisions in these bills will ensure certainty as the new workplace relations system comes into operation. These bills, when they come into law, will operate with the Fair Work Act 2008. This will mark the end of one of the darkest periods in Australia’s industrial relations history.

If there is one thing more than any other that caused Australian electors to drive the Howard government from office, it was Mr Howard’s trashing of the strongly-held principle within Australian society that fairness should always be a core element of Australia’s industrial relations system. At the same time as the Howard government was orchestrating a massive deterioration in employee pay and conditions, business was experiencing record profits. In aggregate, company profits were growing at a substantially greater rate than the growth in aggregate wage and salary expenditure. In other words, there was no credible reason that could justify the then federal coalition government’s assault on employee wages and conditions. The whole exercise was a sham from start to finish. Plainly, Mr Howard’s attack on the working conditions of working men and women was driven by ideology together with a pathological and irrational hatred of unions.

Certainly for a while John Howard thought he had got away with the progressive dismantling of the employment conditions. In this endeavour he was lauded, egged on and abetted by extreme elements within the Liberal Party, especially in the Western Australian branch of the Liberal Party. However at the same time it was becoming increasingly obvious to the large majority of Australians from direct experience in their workplaces that the spin being peddled by John Howard and his ministers about the marvellous benefits that would flow to working Australians from the coalition government’s workplace policy revolution was shaping up to be a massive hoax.

While many in the workforce knew that the Howard government’s rhetoric did not match the facts, it had become strangely difficult for the broader public to find out the true extent to which standard employment conditions were being downgraded. Fortunately, in May 2006, as a result of Labor questioning at Senate estimates, information came to light about what was being lost by Australians on Australian workplace agreements. What was emerging was that employers had been provided an array of opportunities to manipulate the fine print of the Work Choices legislation to enhance their bargaining strength at the expense, unfortunately, of employees. People in lower-paid jobs found that they were encountering more and more a ‘take it or leave it’ response from their employers or potential employers as far as their conditions of employment were concerned. This is why so many employers loved Work Choices.

With John Howard and his ministers crisscrossing the country and saturating the airways and the nation’s letterboxes with Work Choices propaganda laced with fairytales and half truths, employers knew they were being given a nod and a wink to dismantle anything in Australia’s industrial relations system that they did not particularly like. As a result, the pace of the erosion and cutting of employment conditions increased rapidly. Typically this was justified by the often-made claim trotted out by many employers that employees had to be much more flexible in today’s workplaces. Workers are well aware that in today’s world we need to adapt and adjust to often rapidly changing circumstances. Families are doing this all the time. Australian workers do not need to be consistently harassed by employers or conservative governments about the need to be more flexible. However from bitter experience Australian working men and women also knew that all too often in the workplace there can be a very, very fine line between flexibility and exploitation. All too frequently, when an employee hears the word ‘flexibility’ being spouted by an employer he or she knows that bad news could be following. You know straight away that in all likelihood your duties and responsibilities are about to increase, and quite possibly your workload is about to get a lot heavier, but there will be no increase in pay—you just have to be ‘more flexible’.

The problem for the Howard government was that employers moved faster than expected in slashing and burning employee conditions and it was becoming more and more obvious to the Australian electorate that it had been badly misled by John Howard and his Work Choices minister. With a federal election looming, the Howard government attempted a number of manoeuvres to get out of the mess it had created, all of which failed miserably. The Howard government’s cover had been blown by the actions of too many employers, and Australia’s voters were not going to have a bar of it. While there continued to be an information blackout on the effects of Work Choices in workplaces, in April 2007 information was leaked to the media that revealed that 44 per cent of Australian workplace agreements excluded all 11 protected award conditions.

The Howard government’s Work Choices legislation was born in deceit and was clothed in deceit. Nothing demonstrated this more than the claims by Howard government ministers that Work Choices provided individual employees the ability to bargain productively and constructively with their employers. For the vast majority of employees this was simply never the case. In fact, Work Choices did the exact opposite: it destroyed the bargaining power of most Australian employees. The erosion of the bargaining power of employees for fair pay and conditions was a feature of the Howard government’s years in office.

Indeed, one of the most discouraging facets of modern business has been the increasing disconnect between the interests of business and those of the community and of the workforce. Unfortunately, some segments of business have increasingly put short-term gain before the long-term interests of the community. We saw this in the increasing use of outsourcing and contract labour, the deskilling of the workforce and the loss of apprenticeship positions. Despite the rhetoric, rather than building the future the emphasis by many in the private sector had been on ‘screw the present and to hell with the future’.

As well, too many in private enterprise saw that the way to ever-increasing profits was by shifting the risk of doing business from the businesses to the workers and to the community in general. It is not difficult to gain the impression that the making of the current global financial crisis was in major part due to an abrogation by elements in the private sector of the sector’s broader responsibilities. Let me say also that it is no exaggeration to state that the Howard government encouraged and effectively sponsored an increasing disconnect between businesses and their greater responsibilities to employees and to the community.

As an example of this reality, I would like to draw to the attention of the Senate the situation concerning heavy vehicle drivers and owner-drivers. Having worked previously as a heavy vehicle employee and an owner-driver, I know more than a little about this subject. The major trucking companies and, by implication, the major users of heavy transport services have persistently refused to acknowledge that there is a link between oppressively low rates of pay and return to truck driver employees and owner-drivers and serious heavy vehicle crashes and fatalities. As far as some of the major trucking companies, the Australian Trucking Association and the major users of heavy road transport services are concerned, heavy vehicle road crashes are principally the fault of the drivers.

For a number of years the Transport Workers Union has been advocating on behalf of thousands of heavy vehicle drivers for safe rates of remuneration. This effort by the TWU has been supported by mounting evidence and direct experience of those in the industry that the current payment methods and rates of pay for heavy vehicle drivers are resulting in alarming rates of death and injury from heavy truck road accidents. In the year to June 2008, there were unfortunately no less than 263 fatalities as a result of heavy truck crashes, an increase of approximately 8.7 per cent over the previous year. Over the past three years the average annual number of deaths involving articulated trucks has increased, sadly, by five per cent per year. The truck drivers’ low rates of pay are the direct consequence of the weak bargaining position of owner-drivers and of the many hundreds of small trucking businesses who have little option but to accept poverty rates from the relatively small number of major corporations who make up the bulk of demand for heavy truck transport services.

If air transport companies got up to the same devices in the way they pay their pilots that the major road freight transport companies get up to in the way they pay their truck drivers, there would be a public outcry. In order to make a respectable living, it is now often impossible for drivers to maintain safe work practices. The major trucking companies have remained adamant that nothing should be put in the way of big business to extract even lower transport costs out of the nation’s truck drivers. The result is that most of the benefits of Australia’s highly efficient and competitive heavy vehicle transport sector have been captured by the purchasers of transport services and not the front-line workers in the road transport industry.

In July 2008, Julia Gillard, the Deputy Prime Minister and Minister for Employment and Workplace Relations—together with Anthony Albanese, Minister for Infrastructure, Transport, Regional Development and Local Government, and Dr Craig Emerson, Minister for Small Business, Independent Contractors and the Service Economy—jointly announced that the National Transport Commission, the NTC, would investigate and report on driver remuneration and payment methods in the Australian trucking industry and make recommendations for reform. As the minister’s media release stated:

The trucking industry prides itself on being highly competitive and efficient. However, the industry’s strength can also be its weakness, with truck drivers often finding themselves in a weak bargaining position and unable to maintain safe work practices.

I remind the Senate that this was an issue that the Howard government was happy to ignore. The results of this independent inquiry were reported by the National Transport Commission in October 2008. In brief, the inquiry, conducted by the Hon. Lance Wright QC and Professor Michael Quinlan of the University of New South Wales, found:

This Review finds that the overwhelming weight of evidence indicates that commercial/industrial practices affecting road transport—

and I want to say this very clearly—

play a direct and significant role in causing hazardous practices. There is solid survey evidence linking payment levels and systems to crashes, speeding, driving while fatigued and drug use. This evidence has been accepted and indeed confirmed by government inquiries, coronial inquests, courts and industrial tribunal hearings in Australia over a number of years.

In contrast, in its submission to the safe payments inquiry, the Australian Trucking Association had this to say:

… the consensus view of the ATA—

being the Australian Trucking Association—

is that the most effective and appropriate way to further improve the industry’s on-road safety performance is to implement and enforce the impending Driving Hours and Fatigue Management effectively and that establishing a “Safe Rates” regime is—

and listen to this, Mr Acting Deputy President—

unnecessary and would be ineffective and unsustainable.

I cannot believe they said that—it is absolutely disgraceful.

Since the release of a report prepared for the National Transport Commission it has become impossible to deny that there is not a link between heavy vehicle crash fatalities and rates of pay received by heavy vehicle truck drivers. It will be interesting to see what action the large trucking companies are willing to take to save lives on Australian roads. I raise this example because it illustrates the double talk that typifies much of what is peddled by the opposition in regard to industrial relations policy. In this example we see how, too often, private sector entities—in this case, the Australian Trucking Association—are adept at muddying the water and denying the obvious when it comes to accepting a responsibility to pay drivers fair rates. This real life example shows that the employee-employer relationship is hardly ever a balanced one, and the odds are generally stacked, unfortunately, in favour of the employer.

To the great relief of Australian working families, the federal election was held on 24 November 2007. We all know the outcome: Labor was swept into power, with John Howard suffering the ultimate indignity for a Prime Minister of not only being tossed out of government but also being spurned by the electorate he had represented for 33 years. These events showed how arrogant and out of step with mainstream Australia the Liberal-National coalition government and John Howard had become during their period of office. John Howard’s Work Choices legislation demonstrated that a Liberal-National coalition—let us not forget The Nationals; let us not forget the doormats—should never again be trusted to enact fair workplace laws.

Nonetheless, it is important for the Australian electorate to remain alert to the fact that, even though the Leader of the Opposition has declared that Work Choices is dead, there is plenty of evidence—plenty of it—that extreme elements of the Liberal Party, particularly in the state of Western Australia, retain an ideological commitment to all that Work Choices stood for. The Liberal Party did not spend 20 years to get its extreme and unfair workplace ideology into law to still not harbour a desire to do it all again. It is important for Australians to take note that Work Choices might be dead, but the Liberal Party’s extreme industrial relations ideology is still alive and well. I am sure that, if WA Liberal politicians were given half a chance and had their way, Work Choices would be brought back to life as quick as a flash.

John Howard and the Liberal Party unashamedly devalued the human side of employment contract. These bills, together with the Fair Work Act 2008, restore the dignity of the compact between the employer and the employee. That is what hardworking Australian men and women deserve and should rightly expect. The Liberal Party has shown that it does not value the high standards of performance and commitment that Australian workers give to their employers through their work. I commend these bills to the Senate and congratulate the Minister for Employment and Workplace Relations for restoring fairness and dignity to Australia’s system of industrial relations.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

It is with significant concern that I rise to speak and contribute to the debate about the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. This government promised that the award modernisation process, as part of its workplace relations reforms, would not increase costs for employers and would not disadvantage employees. When this place previously considered another piece of legislation and attempted to prevail upon the government to legislate that promise, government senators voted the promise down. If the government meant that promise at the time that it made that promise then why won’t the government legislate that promise? Unfortunately, the proof is now becoming part of the pudding, and the pudding is before us as part of the transitional legislation and the bill that we are about to consider in this place.

The government’s transitional bill may be seen by some to be legislating about half of the government’s promise, and that, of course, is the ‘about half’ that maybe addresses some of the concerns of workers, the concerns that the government keep its promises to workers that workers will not be disadvantaged by the government’s workplace relations reforms. The so-called fair work transitional bill attempts to reassure workers by making provisions for workers to obtain things like take-home pay orders. On the say-so of the union movement, representing employees, those proposed take-home pay orders are in themselves not only (1) a concession that workers do stand to be disadvantaged by the award modernisation process but (2) inadequate for a range of reasons. One of the most compelling reasons is that take-home pay orders are about cash and supposed loss of financial benefits—in other words, workers being supposedly financially worse off.

The union movement has been very clear in saying that the Labor government’s award modernisation process stands to disadvantage workers in ways well beyond financial disadvantage and that these supposed take-home pay orders spectacularly fail to address the disadvantage to be suffered by workers in ways other than financially. We have the government conceding that, on the face of its workplace reforms, yes, employees do stand to be disadvantaged by the award modernisation process, hence some mechanisms may be in the transitional legislation.

But what about the other side of the promise: that award modernisation will not increase costs for employers? That feeds straight back into the promise about workers, because, if costs are increased for employers, the testimony of employers is that unfortunately the jobs for workers will suffer. What do the government propose with this transitional bill? Oh, they propose a couple of things. They propose that, in certain circumstances, at the whim of the Australian Industrial Relations Commission or Fair Work Australia, there may be a delay of up to five years in implementing the pain and the increased cost of award modernisation. The very clear and compelling evidence from business is that delayed pain is still pain, and it will still result in death—albeit delayed.

The Deputy Prime Minister, in her second reading speech and in the explanatory memorandum, concedes yet again that the award modernisation will fail to keep part of the government’s promise. She concedes that the award modernisation process will increase costs for employers. In a further and failed attempt to address that, the transitional bill provides that if a business considers that its viability is threatened by the impact of award modernisation then that individual business may have the opportunity to put itself under public scrutiny and argue: ‘If this award modernisation process takes place and applies to me and my business, then the viability of my business will suffer.’ What business worth its financial salt is going to feel free to make a submission in public along those lines? A submission that ‘my viability is threatened’ is little less than sure to bring about the demise of the viability of that business. We have token solutions from the Deputy Prime Minister, token solutions from the government and, most compellingly, a concession that they have failed to keep their promise.

In the last couple of weeks, there has been an interesting development. The Deputy Prime Minister has said that award modernisation is going to have a particularly detrimental effect on some parts of the economy and has decided to vary her administrative request to the President of the Australian Industrial Relations Commission in respect of the restaurant and catering sector. She says in a letter:

I have been provided with material that supports the claims—

from the restaurant and catering sector

that the modern award would result in significant cost increases for the restaurant, café and catering sector in many states and that the capacity of that sector to bear such increases, even with transitional arrangements, is limited.

There is, she continues:

... the potential for the modern award to impact upon the continuing viability of restaurant and café businesses which operate in an industry characterised by low profit margins and peak operating times of evenings and weekends.

The letter goes on to list eight grounds upon which she says she is relying in justifying her protection—understandable protection—of the restaurant and catering sector from the brunt of her award overhaul. She talks about things like the spread of businesses to be covered by the hospitality award operating on different business models and typically having streams of revenue from other activities, such as gaming and accommodation. She talks about high labour costs and about high award reliance. It should be little surprise to the government to know that there are many other sectors operating in Australia that consider that they face the same challenges as the restaurant and catering sector. They want the same as what the Deputy Prime Minister has given the restaurant and catering sector, yet the government has steadfastly refused, thus far, to give them the same.

I will illustrate by giving a couple of examples from, in part, my backyard in South Australia. The wine grape growing industry is across states but has a particular part in my home state of South Australia and in my former state of Western Australia. I want to refer to a letter from Mr Neil Delroy, who is Managing Director of Agribusiness Research and Management, which manages a number of vineyards. Mr Delroy has written to me to express his concern about the government, through the award modernisation process, grouping grape growers, farmers and primary producers in the wine industry award with those who process and pack grapes and retail wine. You would think that, based on the words of the Deputy Prime Minister in her letter to the President of the AIRC in the respect of the restaurant and catering sector, there might be some questions about operating on different business models. You would think that there might be some questions about businesses to be covered by the wine award typically having streams of revenue from other activities. Streams of revenue from wine are going to be a bit different from streams of revenue from flogging your grapes—and properly so. Mr Delroy writes about the proposed inclusion of the grape growing industry in the wine industry award having ‘a significant impact on our industry and an increase in labour costs.’ That sounds a bit like the Deputy Prime Minister’s letter to the President of the AIRC in respect of the restaurant and catering sector. He goes on to say:

None of the vineyards that we manage were profitable last financial year nor will they likely be this financial year. This is due to increasing operational costs ...

He then goes on to say:

Vineyard labour costs currently represent approximately 50% of the total site cost for grape growing.

It sounds to me like labour costs are a significant proportion of the operating cost, as they are in the restaurant and catering sector. He goes on to talk about vineyard operating times that are:

... to a great degree dictated by the elements of weather and optimal harvest times ... governed by climate and agricultural factors that are outside the control of management.

It sounds to me like peak operating times. It sounds to me like penalty hours and penalty rates, not unlike those referred to in the Deputy Prime Minister’s letter to the president of the commission about the restaurant and catering sector. And Mr Delroy says:

Vineyard operations rely heavily on wage and seasonal casual employees hence we have a very high award reliance.

Again, it is the same as the Deputy Prime Minister’s letter to the president of the commission about the restaurant and catering sector.

But that is not all. What about the cleaning services sector? Longford Cleaning is a South Australian based cleaning services business which wrote to the Deputy Prime Minister at the end of May referring to the Deputy Prime Minister’s promise that ‘award modernisation should not leave employees worse off or drive up costs for employers’. They are understandably confused about that promise because Mr Gibbie, a director of the business, says to me that the options for his business, in order to sustain the increases from this overhauled award process, will result in the loss of 75 to 80 per cent of their business if they were to pass on to their customers, or attempt to do so, the increased costs. They see no other end result than that their workers will be worse off:

... our workers will be worse off because they no longer have a job or they have less hours and therefore are no better off.

Mr Gibbie goes on to say:

In our industry, margins are slim, hopefully 5%.

The Deputy Prime Minister, in her letter to the President of the Industrial Relations Commission in respect of the restaurant and catering sector, refers to her own words: ‘comparatively low profit margins and high labour costs as a proportion of total expenses’. She goes on to cite Australian Bureau of Statistics figures, saying that in 2006-07 the average profit margin was 3.8 per cent for cafes and restaurants and 5.3 per cent for catering services. She goes on to compare that with a 12.7 per cent average for all industries. Well, Mr Gibbie says that in the cleaning services sector, industry margins are slim—hopefully five per cent, and that is if they are lucky. It sounds to me pretty much on a par with the restaurant and catering sector. So there are, understandably, other sectors in Australia that consider they have the same challenges as the restaurant and catering sector, and they reckon they deserve the same concessions that the restaurant and catering sector is apparently about to get. They want to know whether the government will give those concessions to them.

It is pretty clear that the government does not have a process to deal with these concerns from industry. They do not have a policy and they do not have a process. That becomes clear because the Deputy Prime Minister cannot clearly tell other sectors how they might stand a chance to get what the restaurant and catering sector seem to have got—industries like retail, fast food, pharmacy and cleaning services. They reckon they share the same reasons that Ms Gillard gave to support her saving of the restaurant and catering sector from the brunt of her award overhaul. But she cannot reassure those sectors, who reckon they face similar challenges, that they will get similar relief, and they do not know how to convince her that they need it. I asked Senator Arbib in question time today about whether the government would give the same to those other sectors who the government knows deserve it. He attempted to reassure the opposition and those parts of industry—horticulture, pharmacy, retail, cleaning services and fast food—with these concerns:

In the areas you raised—horticulture, pharmacy and retail—there is an examination going on right now by the department and the Deputy Prime Minister. I do not think that is any surprise because there is extensive consultation with the sector going on right now.

The horticulture, cleaning services, retail, pharmacy and fast food sectors deserve to know exactly what examination and extensive consultation with their sectors is supposedly going on right now because if the government is consulting with these sectors, when, where and how is it happening, and do these sectors know about it? Mr Mark McKenzie, Executive Director of Wine Grape Growers Australia, says to me that ‘wine grape production has not been conferred with by the government’ about the government’s decision to parcel it up in the wine industry award. So if there are examinations and extensive consultations supposedly going on with the sectors right now, it might be a good idea to let the sectors know about it.

If the industries facing similar challenges to the restaurant and catering sector actually get what they think the restaurant and catering sector has got and what the restaurant and catering sector thinks it has got, will it make any difference? Let us look at that. In acknowledging the valid concerns of industry, the Deputy Prime Minister says in her varied award modernisation request to the president of the commission:

... the Commission to create a separate modern award covering the restaurant and catering industry, separate from those sectors in the hospitality industry providing hotelier, accommodation or gaming services ...

She says that the commission should create a modern award. The Deputy Prime Minister knows full well that saying something should happen does not guarantee that it will happen. She then goes on to say, in respect of the restaurant and catering sector, the development of such a modern award ‘should establish a penalty rate and overtime regime that takes account of the operational requirements of the industry, including the labour-intensive nature of the industry and the industry’s core trading times’.

Once again the Deputy Prime Minister knows full well that ‘should’ does not guarantee ‘will’.

Debate (on motion by Senator Stephens) adjourned.