Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The coalition welcomes a number of aspects in the Fair Work Amendment Bill 2012 but also has great reservations about a number of other aspects. To set the scene for the debate that we are having today it is necessary to remind ourselves that there was no regulatory impact statement when the Fair Work Act was implemented. As a result, the government was required to have a review within two years. Finally, on 20 December last year, the Minister for Employment and Workplace Relations, Mr Bill Shorten, announced the review.

The review, colleagues will remember, was a review undertaken by hand-picked panellists whose pedigree was that they were Labor sympathisers. We had the good professor who, after only two months of Work Choices, was able to make definitive statements about it and yet, two years after the Fair Work Act, came up with the lame description that it required 'more time' before we could tell its impact. This is the same professor who railed against the use of the corporations power for coalition workplace relations policy yet has remained strangely silent when it comes to the use of the corporations power for Labor workplace relations legislation. So, a very simple approach: Liberal, bad; Labor, good. Hardly what you would expect from an academic and hardly what you would expect from a person who would provide an independent mind and judgement to these matters of great importance to our nation and of great importance to individual workers right around Australia.

I could go on with other panel members but I will not. What we do know is that the terms of reference under which this cherry-picked, hand-picked panel had to work with were skewed. How do we know that? We know because, after many questions not being answered, my office finally undertook a freedom of information request which showed the documentation and the email trails where the department quite rightly had expressed concern that fundamental issues such as union militancy, red tape and productivity were not part of the terms of reference. Long story short: hand-picked panel, skewed terms of reference. Nevertheless, it provided a report which was, as one might expect, disappointing.

But, nevertheless, there were 53 recommendations, and a majority of those recommendations were recommendations with which the coalition agreed, recommendations where—despite the biased nature of the panel, despite the skewed terms of reference—reality mugged the panel to such an extent that they had to accept a number of recommendations. As a result, there are a number of issues here where the coalition is in full agreement. But I might add that instead of implementing all of the 53 recommendations or seeking to deal with them, Mr Shorten has done a political act in relation to this and has only dealt with 17 out of the 53 recommendations. Let me go through a few of them.

One of them is that the panel recommended that the Fair Work Act be amended to expressly empower Fair Work Australia to strike out an award variation application that is not made in accordance with the Fair Work Act, is frivolous or vexatious or has no reasonable prospects of success. Good, sensible stuff; the coalition fully supports it. I move on to the implementation of recommendations 44 and 45, where the panel recommended that the President of Fair Work Australia give consideration to requiring applicants to provide more information about the circumstances of the dismissal in the initial documentation lodged with Fair Work Australia. That is in relation to unfair dismissals. Similarly in relation to unfair dismissals there is the suggestion that costs orders be able to be made.

I indicate that as a coalition we have been talking about that for about two years and, yes, the ACTU, unable to help itself, had to come out and condemn us. Interestingly enough, the Fair Work Act review panel came to the conclusion that in effect what we as a coalition were saying was right. Small business has suffered, and suffered terribly, under this extreme unfair dismissal regime and it is a credit to the Labor government that they are willing to address these issues at least in part. It is somewhat strange that when the coalition make such recommendations, the ACTU is out there opposing it; when the government finally get mugged by the reality that these things do have to be changed, the ACTU is deafeningly silent because other trade-offs have been made with them.

Allow me to turn to those aspects of the bill where we as a coalition have very real issues and where we will be seeking to move amendments during the committee stage. First of all, this bill also contains matters extraneous to the Fair Work Act review panel's recommendations. A matter that the coalition have long been concerned about is the default superannuation schemes in the modern awards. We believe that they should be opened up for competition so that workers can get the best deal possible. But of course when you have industry super funds that are run by union and employer groups and they are the organisations making representations to Fair Work Australia, guess what? There is always a consent agreement that these superannuation funds should be part of the award, part of the default superannuation mechanism. It has always been the coalition's view, and my personally strong view, that these superannuation funds should not be allowed to be default funds just because two sectional interests happen to agree because they have certain benefits.

Senator Farrell interjecting—

Senator Farrell interjects and says, 'I think that they are the best funds.' My view is, very clearly: let them prove that they are the best funds. And if they are, they have nothing to fear from an expert panel examining them and determining whether they are worthy. In fact, that is what the government's own review, conducted by the Productivity Commission, actually recommended. But what do the government do? They do not implement the Productivity Commission's recommendations, because they are hell-bent on protecting the gravy train of certain of the industry super funds from which the trade union movement in particular does exceedingly well. This is not serving the interests of Australian workers, it is not serving the interests of superannuation generally, it is not serving the best interests of our nation as a greater proportion of the population need to rely on their own retirement funds and are no longer able to rely on the pension. As a result, we will be moving amendments, and I will be expanding on that later, to have those schedules removed.

Another aspect of this bill, which is gobsmackingly arrogant, gobsmackingly vain of this Prime Minister, is the government's refusal to accept that the name of Fair Work Australia should be changed. That was the finding of the review panel. It is the considered opinion of the President of Fair Work Australia. It is the considered opinion of the trade union movement. It is the considered opinion of employer groups. It is the considered opinion of the Independent Contractors Association, the Council of Small Business of Australia, the Housing Industry Association. Do you know who else is on the list? The Maritime Union of Australia. So we have this absolute clean sweep across the board, from the MUA right through to employer organisations to the President of Fair Work Australia, and the recommendation of the President of Fair Work Australia itself.

And their strong recommendation: delete the name 'Fair Work' from the name 'Fair Work Australia'. Why? Because the brand has been trashed. Why has the brand been trashed? Because of the way Fair Work Australia has conducted the Health Services Union inquiry. I have given speeches about that in the past and will not dwell on it for too long. Further, the brand has been trashed by the appointment of an endless tribe of ex-trade union bosses to sit on the bench of Fair Work Australia. Furthermore, the name 'Fair Work Australia' is Orwellian if ever there was such an example.

That is why every single sensible contributor—and it is not often I will be saying that about the Maritime Union of Australia, might I add—from the Maritime Union of Australia right through all agreed that 'Fair Work' should be deleted from the name. But we have the vanity of this Prime Minister saying, 'Nobody will stand in the way of Fair Work Australia remaining.' If Labor and the Greens want to combine here in this place and retain the trashed brand of 'Fair Work Australia', they can be our guest, but in so doing they will be doing a disservice to the workplace relations system in this country. They know it, the panel knew it, the President of Fair Work Australia knows it, the union movement knows it, the employers know it. Everybody knows it other than the woman that gave it the name—namely, the current Prime Minister, who was then Deputy Prime Minister, Ms Gillard. It is her vanity that stops the name change that would be such an improvement and cultural change that is so vitally important. That is why we will be recommending that the name should be changed to the 'Australian Workplace Relations Commission'.

More important for us is the amendment being moved by the government to the Fair Work Act to create two new vice-presidential positions. Out of the 250 submissions to the Fair Work Act review, did anybody raise this issue? No. Was it recommended by the review panel? No. From where did it come and why is it so urgent? Nobody can explain other than this is a blatant attempt by this government, thinking that it is in its death throes, to try to future-proof Fair Work Australia from any attempt at getting a balanced bench. We know that the new president—and I mean him no disrespect by this—of Fair Work Australia could only have gotten the job, I am sure, because in a previous life he was an assistant secretary of the ACTU. You then have a look at the endless tribe of ex-trade union officials that have been appointed to Fair Work Australia. You then ask yourself the question: why do we need these two extra positions, at a cost to the taxpayer of $1.5 million per annum? That is the estimate from the department. When the government budget is haemorrhaging everywhere, we are creating two new positions to try to leapfrog all the other senior officials in Fair Work Australia.

Is this just the coalition being concerned? No, it is not. No less a body than the Law Council of Australia has come out in condemnation of this proposal, because they see it for what it is: an undermining of this quasi-judicial body by creation of new positions to try to sideline other people who have seniority within Fair Work Australia. Of course, who are these two people with seniority in Fair Work Australia? Former Howard government appointees, Mr Lawler and Mr Graeme Watson—or should I call them vice-presidents Lawler and Watson. The government has put no argument to us as to why this is such an important amendment, such an important proposal, other than to try to ensure that they so stack out Fair Work Australia that no government will be able to correct the balance for a long, long time. It is shameful, it is transparent and it is another indication that Mr Shorten in this role as workplace relations minister does not understand that he has an overriding responsibility to the national interest. He still sees himself as a trade union boss just wearing a different hat and, as a result, he will do that which he believes is necessary to advance the cause of ex-trade union bosses. That is not what provides confidence to the Australian people and to Australian workers and Australian businesses that Fair Work Australia will provide sound, balanced decisions in this difficult and vexed area.

Further, the government needs to explain why this legislation was rushed into the House of Representatives one day and then passed the very next day—forced through. Then we have it moved in the Senate today that the bill be exempted from the cut-off. We had the embarrassment yesterday of the government doing this with another workplace relations bill only to be scrambling around with amendments to try to fix it up. That is why there are these time gaps between legislation moving from the House to the Senate. That is why bills should lay on the table. That is why proper consideration by Senate committees should be allowed. But since the Greens and Labor have got control of this place the Senate committee system has fallen into disrepute.

This important bill was given four witnesses to be heard and was rushed through in one day.

Senator Polley interjecting—

We hear Senator Polley's interjection, which is very unwise because we know that, since the Greens-Labor alliance have got control of this place, they have thus far guillotined 150 bills since the last election. When the coalition had control of the Senate, those opposite condemned us because we had guillotined less than one-third of that number in the whole three-year period of the government. They have now gone strangely silent because the Greens-Labor alliance opposite know how they are abusing this chamber and are ensuring that legislation is not being properly considered. So much for the Greens and the country Independents promising a new paradigm of legislative transparency, that the parliament would be made to work as it should. Here we have bills rushed through the House, rushed through the Senate, no proper Senate committee stages and, as a result, bad legislation getting passed.

The coalition's view on this legislation is that there are a lot of good things in it which we support. There are also many bad things in it which we oppose. We will pursue each and every one of our amendments to a division. We will seek to put on record our very important concerns. If at the end of the day it is the Senate's view that the legislation should be unamended—and it is quite clear what its view will be—we will not oppose.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Amendment Bill 2012. The Australian Greens will be seeking leave to move amendments—we are calling them the better work/life balance amendments—that mirror the Fair Work Amendment (Better Work/Life Balance) Bill 2012 introduced by my colleague Adam Bandt in the other place.

Statistics constantly tell us that in Australia there is often a mismatch between the hours that people actually work and the hours that they want to work. On average, full-time employees would like to work about 5.6 hours less per week while part-time workers would like to work around four hours less than they are currently working. In addition, as a country we perform $72 billion of unpaid overtime each year. It cuts the other way too: there are many people—though, according to the studies, a lesser number—who would like to work more hours than they are currently working but are unable to.

A 2010 study on the health and working conditions of approximately 78,000 working Australians concluded:

… it may be counterproductive for employers to expect long working hours as employees are likely to take more time off and work less efficiently.

The study also commented that there is considerable evidence of an association between work demands and poor health. We have a situation where just over half of all Australians want to change their hours of work, even if this might impact on their income.

The Australian Work and Life Index—AWALI—is an annual study by the Centre for Work and Life at the University of South Australia. I am familiar with the work of AWALI, and it is held in great respect. The authors use the term 'work/life interference', and the 2012 data shows it is persistent and for some people getting worse. The report noted that around one-quarter of the Australians surveyed report that work frequently, often or almost always interferes with other life activities. Women's work/life outcomes are worse than men's when we take into account differences in work hours. Long hours and a poor fit between actual and preferred working hours are both associated with worse work/life outcomes. Most of those who work long hours would prefer not to. I am sure it is not a sentiment that would be understood by members of this chamber or the other place, but apparently that is the case in Australia!

Unfortunately, things are getting worse for women working full time. Work/life interference for this group has increased from 2007 to 2012. Full-time women's dissatisfaction with their work/life balance has risen from 15.9 per cent in 2008 to 27.5 per cent in 2012. In 2012 the gap between full-time women's actual and preferred hours is the largest since 2007. On average, they would prefer to work 8.7 hours a week less than they actually do. 41.8 per cent of mothers in full-time employment would prefer to work part time. This is the largest proportion since 2007.

There is no doubt that many good employers already recognise the benefits of providing flexible working arrangements; however, this recognition is not as widespread as it could or should be. The Australian Greens want people to have more control over their time and working arrangements. We need a better match between the hours people want to work and the hours they actually work. At the moment, people do not have an enforceable right to request flexible working arrangements. At the moment, under the Fair Work Act you can request a change to your working hours but, if the employer says no, there is nowhere for you to go—no appeal, no recourse, no prospect of improvement in your work/life balance. You are stuck with it.

These amendments would ensure that requests for flexible working arrangements are treated seriously. Employers would not be forced to agree to every request, but they must give them proper consideration. These amendments that the Australian Greens will be moving will extend the right to request flexible working arrangements to all employees unless there are reasonable business grounds for refusal. In addition, the right to request would be strengthened for those with caring responsibilities, with employers only able to say no where there are serious countervailing business reasons. In all instances ongoing employees must have performed a minimum of 12 months service before the request can be made.

If an employee's request for flexible working arrangements is refused, Fair Work Australia would be empowered to hear an appeal and, where appropriate, make flexible working arrangement orders. Flexibility is a concept we hear about commonly from employers and employer organisations, but it does need to be a two-way street. That is what flexibility is. People need to have more control over the hours they work, the location they are working and the arrangement of those working hours.

The Australian Greens' amendments would give all employees an enforceable right to request arrangements that will deliver a better work-life balance. Of course, this must be balanced against legitimate operational needs of employers, and that is exactly what these amendments will do. They will provide a test that would make it easier for carers to obtain flexible working arrangements but would still allow any disputes to be resolved in Fair Work Australia by an independent umpire. It is important to note that these amendments are not radical or unprecedented, in fact. This proposal is actually quite a modest proposal by international standards and brings us into line with many other countries.

The United Kingdom, the Netherlands and Germany have been doing this for a number of years and their experience is illustrative. A review of flexible working arrangement laws in these countries showed that a number of valuable lessons had been learned and a number of myths dispersed regarding the laws. There was a reasonable but manageable level of requests. The Netherlands had the highest level of requests with 14 per cent of employees, while the UK had only 3½ per cent and Germany recorded less than one per cent. Significantly, the majority of requests in each country were acceptable to employers. Costs were not a major problem with implementation and sometimes even resulted in savings. In addition, interestingly, very few requests ended up in dispute. In the Netherlands and Germany, fewer than 30 requests per country resulted in court action in the first two years of the law.

So the overseas experience suggests that being obliged to provide flexible work for employees may in fact help companies by ensuring that they examine alternative models that they may not have been willing or able to consider previously. An expanded right to request flexible working arrangements does not have to override management prerogative; it simply ensures that full and proper consideration is given and provides an enforceable right and oversight from Fair Work Australia.

I note that the 2012 Australian Work and Life Index report recommends that the right to request flexible working arrangements be widened and that workers be given protection from unreasonable refusal. The amendments that the Australian Greens will be moving will deliver on that recommendation and deliver a better work-life balance for Australian workers.

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

Before I make my contribution on the Fair Work Amendment Bill 2012, I want to make a couple of comments about Senator Wright's contribution and the amendments that she will move on better work-life balance. This is not a radical move. We are not running sheltered workshops here. The UK is illustrative of the impact of this type of legislation on small businesses. When we talk about wanting better work-life balance for our workers, I have to say that as a daughter of a small business owner—and Mr Deputy President, I know that you were involved in small business as was Senator Scullion, who is in the chamber—work-life balance for workers is fantastic, but what about the work-life balance for those who actually produce and drive our economy—the small- to medium-sized enterprises in our communities? I can actually attest to the fact that their work-life balance is not particularly healthy. Yet they are out working, not always bringing in the big bucks but enjoying the independence that being a small business owner brings.

I rise to speak today on the Fair Work Amendment Bill 2012, and I say from the outset how disappointing it is that the Labor government is rushing through legislation—in this case, legislation that will affect every employer, every employee and every independent contractor—without allowing the Senate Standing Committee on Education, Employment and Workplace Relations adequate time to hold a thorough inquiry to investigate the detail of the bill. I am concerned that we are required to consider this bill in the Senate prior to the Parliamentary Joint Committee on Human Rights completing its report and before the responsible minister responds to the concerns of the Senate Standing Committee for the Scrutiny of Bills regarding inappropriate delegation of power and possible undue trespass on personal rights and liberties. This government should stop shirking scrutiny and permit the Senate and its senators to fulfil their duties.

The bill seeks to make several amendments as part of the government's first tranche of changes to the Fair Work Act, based selectively on reports from the Fair Work Act Review Panel and the Productivity Commission inquiry into default superannuation funds in modern awards. Many listening, including those in the chamber, will recall that the terms of reference for the Fair Work Act review were widely criticised for their limited scope, the omission of productivity, the impact of union militancy and the monetary impact of red tape. Indeed, we discovered that the Department of Finance and Deregulation and its Office of Best Practice Regulation shared the concerns of the coalition and the business sector. It was therefore no surprise to learn that the minister's political advisers had drafted the terms of reference to achieve Labor's political goals. They are probably the same advisers who draft the media releases that drive so much of this government's policy conversation with the Australian people.

The bill's provisions include amending unfair dismissal provisions to align time frames at 21 days and an attempt to improve the integrity of application and hearing process. They include changes to the structure and operation of Fair Work Australia, including renaming it to the Fair Work Commission. There is also a provision to create two additional vice-presidential appointments. The desire of this government to simply rename, rebadge, things, as if we will not notice a change or the cost involved in doing so each and every time, seems to be its modus operandi at the moment, when we consider some of the bills that we discussed last week. The provisions also introduce a process for determining the most appropriate default super fund, clarify who can vote and participate in protected industrial action and who can rightfully act as a bargaining representative, as well as amendments to enterprise agreements, particularly for individuals.

A number of submitters to our inquiry—I sit on the Senate Standing Committee on Education, Employment and Workplace Relations—expressed disappointment about the government's failure to address critical flaws with the existing legislation in the first tranche of changes. The Australian Chamber of Commerce and Industry said:

Unfortunately, the report and its recommendations, as well as the first tranche response, will do little to address the problems identified by Australian employers …

Apparently, Senator Wright, it is not a two-way street. The ACCI went on to say:

This includes the majority of SME business owners, many of whom have mortgaged the family home while trying to create valuable employment opportunities and build wealth for all Australians.

By simply ignoring the problems will not make them go away.

Priority matters raised by submitters to our inquiry included the costly requirements to respond to trade union applications prior to bargaining being agreed; ensuring capacity to make greenfield arrangements without exorbitant wage and condition outcomes or unnecessary project delays; and ensuring protected industrial action can be taken only as a last resort. Multiple submitters opposed moves to prohibit single-employee enterprise agreements on the basis that it would disadvantage small business operators. A number of amendments were proposed, including limiting the provision to proprietary limited companies and excluding partnerships and sole traders or simply improving the 'better off' test for allowing enterprise agreements, regardless of the number of staff.

The Victorian Employers' Chamber of Commerce and Industry were one of the many peak bodies standing up for small businesses, saying they were:

… invariably award dependent, without in-house workplace relations expertise, and are most vulnerable to the inequities and uncertainties of the legislation of the day.

They went on to say:

… many VECCI members have described the policy outcomes of the Fair Work reforms as detrimental to the capacity of business to do business productively, flexibly and efficiently, and have not provided an appropriately modern regulatory framework for modern workplaces and business structures. More specifically, while the Federal Government promised that the Act would not increase costs, the cost of doing business has increased as a consequence of the Act—along with the administrative and practical on-costs of regulatory uncertainty, coupled with uneven and two or three track economic conditions many industries face.

One of the 'systemic defects' identified in the Master Builders Australia submission was bargaining provisions. They stated:

… many of the pattern agreements which are being rolled out across the country on a "sign up or else" basis, by the CFMEU in particular, contain provisions which adversely affect the efficient operation of building sites. Greater balance in the bargaining laws is a pressing reform.

In my home state of Victoria, the CFMEU were condemned for approving illegal industrial action at Grocon sites earlier this year. It was illegal, it was disruptive and it was violent. Workers took out full-page ads in the state daily newspapers declaring they did not support their union's actions. Tens of thousands of dollars in members' fees were forked out for legal costs and a further $10.5 million is possibly payable to cover Grocon's losses due to union bosses choosing to act outside the law.

I take this opportunity to highlight a court judgment on a matter even closer to home, in my patron seat of Bendigo. The High Court delivered a landmark ruling in the Barclay v Bendigo TAFE case on adverse action in September, showing that union officials will not be immune from disciplinary action if they fail to perform in their job or breach employment conditions. Disappointingly but hardly surprisingly, Labor intervened in the matter on the side of—think about it; wait for it—the AEU official, arguing that it was the intention of the Fair Work Act to make union bosses untouchable even if they did the wrong thing. In a statement released on the judgment, Justice Heydon said the intervention of the workplace relations minister had increased the costs awarded against the union by around 15 per cent. He said

… the Minister's stance before and during the oral hearing was not that of an intervener, but that of a partisan.

It is a damning assertion.

There are numerous examples of union officials failing to act in the best interests of their members, breaching financial management rules and using members' money for personal advantage that have hit the headlines this year—most noticeably the HSU scandal. The cost of the HSU investigation to Fair Work Australia is in excess of $1.8 million, not including the cost of its court action against the formerly Labor member for Dobell, following findings that he had used HSU funds to pay for escort services and other improper purposes. The coalition is firm in its view that this must stop. That is why we are currently seeking to amend related Fair Work acts to increase penalties to five years prison and/or up to $220,000 for those in breach, to improve protection for the members of these organisations.

Undeniably, Fair Work Australia's reputation took a hit during the protracted HSU investigation. The review panel recommended a name change that included the word 'commission' and removed the tarnished brand 'Fair Work'. It is a little surprising—but only a little, given that this is probably thematic every time I stand up to deliver a speech. It does not matter whether it is the Murray-Darling Basin Plan, Senator Back, or Indigenous affairs, Senator Scullion, or education policy or Senator Cash's work in equal opportunity for women last week. We changed the name. Let's see if we get a different outcome. We doubt it. So I am only a little surprised that the Prime Minister intervened and that subsequently, in a clear contradiction of the recommendation, the legislation seeks to change Fair Work Australia's name to the 'Fair Work Commission'. The coalition believes the review-recommended name of 'Australian Workplace Relations Commission' is more appropriate and will move an amendment to that effect. While there is apparently no monetary implication for this bill, I would be most interested to learn what the rebranding exercise will cost taxpayers.

Further on monetary implications, this bill includes provision to introduce two new vice-president appointments. The coalition shares the deep reservations expressed by many submitters to the EEWR inquiry, who noted that this was not recommended by the review panel—but don't let that get in the way of a piece of government legislation. It stinks of 'jobs for the boys' and is perhaps the minister's primary reason for suddenly pushing this legislation through parliament. I anticipate a couple of union mates are about to get a nice Christmas present. While cost implications have not been declared in the explanatory memorandum, the Deputy Secretary of DEEWR told our committee during the inquiry that there would be costs in the vicinity of $1.5 million per annum for these positions. The coalition strongly opposes the creation of the two additional vice-president positions and has moved amendments to that effect.

In the limited time remaining, I will touch briefly on amendments impacting superannuation. Minister Shorten took forever and a day to ask the Productivity Commission to conduct a much-needed inquiry into this matter and then cherry-picked its recommendations that essentially maintain the status quo. So, instead of introducing legislation that would ensure genuine competition and improve transparency, we have a bill that seeks to impose yet another layer of government intervention in the default fund market. Given that the MySuper bill has gone through the Senate this week, the coalition believes all MySuper products should be eligible to be selected under the award and proposes that the bill be amended to that effect.

The Liberal-National coalition is disappointed by government's failure to address the concerns of Australian employers and employees regarding its industrial relations laws. The coalition senators' dissenting report to the Education, Employment and Workplace Relations Legislation Committee's inquiry report into the Fair Work Amendment Bill, tabled yesterday, recommends several amendments to the bill at hand. The Leader of the Opposition in the Senate, Senator Abetz, will be moving those amendments to address the many flaws identified in the bill and I give them my full support.

For regional Australia, the whole concept of small to medium enterprises and their crucial underpinning of our local economies cannot be underestimated. I am not just talking about farmers or greengrocers. According to the ABS, if we divide our nation into the urban areas and those not in a capital city, we have 700,000 small businesses right across this nation that are outside of our capital cities. They employ 4.3 million people and their turnover is $200 billion a year. Some of them, like my own family business, are employing a father and some very recalcitrant children—Senator Back, I tell you, we had better take this one to Fair Work Australia, sorry, the commission—at two dollars a day. I think that was probably in 1978, but even if we extrapolate from that it is probably still under award.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

Very generous!

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

It taught me a lot about the value of hard work, listening to your father and getting on and saving, because clearly, at that rate, I was not going to get to my target goal purchase—which I think back then was a pair of rollerskates—anytime soon.

Our small businesses out there in regional Australia provide 75 per cent of our employment. So these big-stick approaches do not work in companies where people are working alongside each other to ensure that the small business grows and develops. The employer wants his boss to succeed, wants the business to grow, wants to work hard so that he can not only maintain his job but his boss's business can contribute to the local footy club or the local surf lifesaving club. The employer and the employee have to fight fires together. They have to play footy on, hopefully, the same team because otherwise it could lead to some issues on a Monday morning, depending on what the game was.

Essentially, though, the way small business operates outside of capital cities is with a more collaborative approach. Small to medium enterprises underpin our local economies in the regions. We encourage the Greens and Labor to support our amendments to the bill so that we can make it the best piece of legislation going forward for industrial relations.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

Deputy President, I thank you for the opportunity to contribute to the debate on the Fair Work Amendment Bill 2012. I intend to commence my contribution with a quiz but, because everybody in this chamber and certainly most people watching or listening would know the answers, there will not be a prize. I am going to give some quotes and then rhetorically answer the time and the person. The first quote is this:

I give you this as an absolute guarantee here on your program. I will not be prime minister of this country and appoint some endless tribe of trade union officials to staff or ex trade union officials to staff the key positions in this body. That's not my intention. That's not the way in which it's going to work.

Of course, all of you put your hands down now because you know who it is. It was the then leader of the Labor opposition, Mr Kevin Rudd, in 2007, prior to the 2007 election. As we know, by June 2010 his party was sick of him so they got rid of him. For those of you who did not get that one right, I move on to the next quote and again I ask you who the person was and the place. The quote is this:

The Labor Party is the party of truth telling. When we go out into the electorate and make promises, do you know what we would do in government: we would keep them. When we say them we mean them.

The same person said, 'The question of truth is not a game and it is not my game.' The same person also said:

On the question of standards in government—openness, accountability, divorcing the workings of government from the influence of peddlers and the donors—we need to be absolutely right, not just better by comparison.

On the question of how we treat each other, we must show our values in action.

Those latter quotes, as you will know, are from the now Prime Minister of this country, Ms Gillard. Whilst my final quote is not exactly relevant to the debate, I think it is very timely in the context of 27 November 2012, and it is this from the now Prime Minister, speaking on Newcastle radio in November 2006:

… question time is supposed to be one of our key accountability mechanisms. If there is a big scandal or a corruption allegation, you are supposed to be able to get to the matter in question time.

Madam Acting Deputy President, there is no need for you to take notes because I will be providing you with a script of what has been said.

We are dealing today, regrettably, with something that flies in the face of the sense and the words of everything that I have just quoted, and that is the indecent haste with which this Fair Work Amendment Bill is being rushed into and possibly through this place. I was a participant in the Senate Education, Employment and Workplace Relations Legislation Committee process at its meeting last Wednesday evening in which I had the opportunity to question only four witnesses. There were many more who wished to express their concern at the speed, the haste and, indeed, the accuracy of what we have seen leading to the bill before us today. More time should always have been allowed. If Ms Gillard's words were to be anything other than an empty bell in a cathedral then she should have directed her Minister for Employment and Workplace Relations, Minister Shorten, to comply with and allow full transparency, full dialogue, a full consultation process and the democratic process of witnesses being allowed to come before a committee of the Senate and put their views before committee members. In most instances, they were denied this.

I do not intend to go at length over areas that our leader, Senator Abetz, did or, indeed, Senator McKenzie did when she was contributing to this discussion this afternoon, except to speak briefly to the superannuation issue. I think that Senator Farrell made a contribution whilst Senator Abetz was speaking. As has been said—

Don Farrell (SA, Australian Labor Party, Parliamentary Secretary for Sustainability and Urban Water) Share this | Link to this | Hansard source

A very good one!

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I am sure that Senator Farrell himself stands as testament to the fact that competition is far and away the best outcome for employees, for employers and for those who provide the services.

As has been said in the last few minutes, the MySuper legislation has passed through this place this week. And yet, perversely, we are not going to see the full allowance of competition in superannuation finding its way into this legislation proposed today. Indeed, it should. There were circumstances put to us the other night that there will be instances with some small employers where there will only be a choice of two and up to a maximum of 10. I ask: if an insurer is fully compliant under the MySuper provisions, why should the full range of competition not be available so that employers and employees alike can benefit from those superannuation provisions? I see no reason for it; no logic has been presented and, of course, we know that it has been roundly argued and disputed, including by those who appeared as witnesses.

Incidentally, the superannuation industry were denied the opportunity. So in the hearing the other night, it was only the Australian Chamber of Commerce and Industry and the Australian Mining and Metals Association that were able to contribute to that discussion on their behalf. But openness, transparency and the full competitive process should be the guidance by which this legislation goes through. I look forward to support from all sides of the chamber to ensure that full competition does find its way, and so the flawed legislation may be a little less flawed at the end of it.

The Financial Services Council said:

We believe the market structure proposed in this Bill for default super/MySuper will limit competition in the $1.4 trillion superannuation industry and result in reduced fee pressure and innovation for consumers.

There are the two characteristics, the two indicators: reduced fee pressure and innovation. And who might be the winners? Of course, we all know: the union-dominated super funds. That is not acceptable. As we know from the OECD, all OECD countries fundamentally rely on competition in product markets to organise production. Those are the justifications for the reason we must proceed.

I turn to the Fair Work review itself. Whilst I do not want to go back at great length, I could be reminded of Mr Rudd's comments about not stacking with endless tribes of trade union officials or ex-trade union officials, or indeed those sympathetic only to one side of the political process. But we know that in December last year Minister Shorten announced the details of the review of the Fair Work Act. In doing so, he was at a position where two things at fault happened: the first was in his choice of those who were to do the review, and the second was the very, very limited scope which he gave those people. Indeed, he insulted them; he insulted their professionalism in so limiting them.

As it is known, the coalition has flagged its general support for the review. But look at those reviewers—Professor Ron McCallum, Dr John Edwards and the Hon. Michael Moore. As I said, they were given skewed and limited terms of reference. In fact, I think we used the analogy from the situation of a horse on a race track; that is, with their blinkers on. The terms of reference failed to address the essential ingredients of productivity, flexibility and union militancy. Those areas were deliberately denied the reviewers. You have to ask why that could be the case in the first review.

Because I have introduced it into the written report, I do not propose to comment adversely on the participants themselves, except to say that they could hardly, at least in two cases, have been regarded as fully independent in terms of what they have said or written in the past about the process, and except to say that Professor McCallum raged against the use of the corporations power by the coalition when in government, but he has been strangely silent on its use under the Fair Work Act. In these circumstances an opportunity was lost—an opportunity to look at productivity, flexibility and union militancy. And this bill will be the poorer because of it.

If I may turn to the question of productivity, I will quote a Western Australian colleague, Michael Chaney. Chaney chairs Woodside Petroleum, he chairs the National Australia Bank, and he was the chief executive of WesFarmers when he took that organisation into ownership of Bunnings and when he extended the WesFarmers organisation considerably. As we know, under his successor, Richard Goyder, that organisation has gone further and taken over Coles. He is the sort of person one would listen to—the sort of person who has created the employment opportunities around this nation that everybody so proudly trumps as their own. It is the Michael Chaneys of this world who are the ones who are the champions when it comes to creating long-term, high-quality, high-value employment. What is Chaney saying? I quote:

Australia will find it difficult to achieve meaningful economic growth without boosting productivity through micro-economic reform.

'Labour market reform urgently needed,' says Chaney:

I'm concerned that if we don't manage to lift our productivity, we are going to find it very difficult to achieve any real economic growth.

He was talking about high terms of trade, high levels of investment up to now, strong population and workforce growth.

This is not the sort of the man who ought to be ignored. He should not have been ignored by Minister Shorten. Nor should the review panellists have been denied the opportunity to actually examine some of these issues.

It goes, of course, to the fact that we asked the department during the inquiry about two key performance indicators. We asked about productivity, especially as measured through work days lost due to industrial action, and it was not possible in the committee hearing to learn of any improvements in productivity as a result of the Fair Work Act coming into existence. At a time when Europe is in its demise and when so many countries in Europe would be bankrupt if they were companies, at a time when the United States of America is looking very, very jaded in terms of its economic outlook, and at a time when even China—that powerhouse that has kept Australia alive and its head above water over the last few years—is now looking at a downturn, it is an opportunity lost that this review did not address itself to those issues associated with productivity improvement and union militancy.

The issue of the vice-presidents of Fair Work Australia has been canvassed here this afternoon. As was said a few moments ago, it was originally the view that there was a no-cost implication to this particular legislation. Of course, when I asked the representative from the department, he concurred with me that there was an estimated $1.5 million of added cost as a result of this introduction. Senior Deputy President Kaufman wrote to the President, Iain Ross, recently, questioning the need for two new vice-president positions, saying that it was reintroducing a level of seniority at the tribunal that was removed under the Fair Work Act in 2009. Senior Deputy Presidents Watson and Richards have written to Justice Ross of their concerns that the government will use the opportunity to install government-friendly appointees. The review panel themselves were not of a view that there should be new appointees.

A commitment was given to us in the hearing the other night that this process would be open and transparent and that there would be advertisement undertaken. The officer said to me, 'No, the department has not given any advice to the minister and, as far as the department is aware, the minister has not started the process because he wants it to be seen to be as at arms-length.' Let us work out into the future whether that is the case. It was Mr Knott from AMMA who, appearing before us, said:

I think this does give the opportunity … to really damage the independence or the perceived independence and impartiality of the tribunal. We have senior appointments made to the tribunal which, through the political cycle—there are people who are appointed by one side who may not be appointed by another side, but that is the way it goes over the fullness of time in the political cycle.

And, as Senator Abetz quoted from the submission of the Law Council of Australia:

As a general principle, once a person has been appointed to sit on a Court or independent Tribunal with designated powers and privileges, any change that would have the effect of removing or reducing that particular person’s powers or privileges while not affecting the powers and privileges of other Members of that Tribunal—

and this is the key point—

has a tendency to undermine the independence of the Court or Tribunal.

These are very important points. They go to amendments that will be debated later in this place, and I look forward to there being agreement based on those concerns of very, very diverse and independent people.

There has been discussion of the term 'the Fair Work Commission'. We know that the panel recommended that there be a change, that the words 'fair work' be removed. I believe the MUA recommended a change. AMMA and other employer based groups have recommended that there be a change, and it will be the recommendation of the coalition that the term 'the Australian Workplace Relations Commission' or similar becomes the title. It is interesting that the most simple of the panel's recommendations, being the change from Fair Work Australia to something akin to the Australian Workplace Relations Commission, has been rejected by the Labor government, despite its support from a broad sector, including the President of Fair Work Australia, the Law Council, the maritime workers union, the Australian Chamber of Commerce and Industry, and the Australian Mines and Metals Association. They have all recommended the change but we know, of course, that it is Prime Minister Gillard, whose quotes I commenced my contribution with, who is the one who has demanded that we continue that circumstance.

There were opportunities lost in this review. Senator McKenzie mentioned the case of Barclay v Bendigo TAFE. It was the High Court which came down with its adjudication and decision in this area. There were recommendations that could indeed have found their way into these changes we are talking about today. It is most interesting that Justice Heydon of the High Court said in his judgement, speaking about the intervention by the responsible minister, Minister Shorten:

… the Minister's stance before and during the oral hearing was not that of an intervener, but that of a partisan. For example, some of the Minister's oral submissions were directed to factual material. This is hardly the province of an intervener.

What a damning statement about the minister responsible for this portfolio.

'This is hardly the province of an intervener'—I would certainly not want that said about me.

Recommendation 47 of the review panel, which time prevents me from reading out, went to the very points of Barclay v Bendigo. The other one of course was the full Federal Court in JJ Richards and, again, the review panel itself made recommendations to deal with that inequity, which of course played its way out through the courts, and, again, at the direction of the minister, this also failed to find its way into the recommendations. I commend the amendments that we are to deal with and I certainly do not like the text of the bill.

Arthur Sinodinos (NSW, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

I am surprised that I have to follow Senator Back and that we do not have too many speakers from the other side. Despite three-quarters of Labor senators being ex-union bosses, not one of them aside from the minister, I understand, can bring themselves to speak on the Fair Work Amendment Bill 2012.

This bill will have a significant impact on every employer, employee and independent contractor in this country, and now the labour movement is allowing the legislation to go through without a murmur, at least from the representatives of the movement in this chamber. Not one of them wants to come in here and defend the provisions that we are debating here today. Not one of them wants to come in here and debate workplace relations out in the open. They prefer to do those deals in those smoke-filled rooms, move the amendments at the national conference and then put them up and hope that no-one will oppose them or have anything to say about them.

Well, we will debate them. We will talk about them. The reason we do so is that, as I said before, the Fair Work Act is a very important act, one of the most important acts before us in this chamber. The opposition are disappointed that this act was not the subject of a full-blooded independent review. A number of my colleagues have discussed that in some detail. I will not go over the same ground, except to ask: what has the government got to lose from a full-blooded review? If we are confident of the impact of this act on the wellbeing of this country and on various parameters of that wellbeing, what did the government have to lose from having a full-blooded review, an independent review? While three eminent persons were given the job of undertaking this review, they were members of the club. They were insiders. In many ways they were being asked to review their own handiwork, or handiwork that they strongly supported or for which they had an ideological disposition. It is fine to have an ideological disposition, but the fact of the matter is that we have an obligation as a parliament to look more impartially and objectively at the impact of legislation on the economic condition of our country, the social condition of our country, and all of those desiderata that are important in considering public policy.

Unfortunately, on this occasion we had an insider review. It was only through freedom of information legislation that we were able to glean that there had been a debate within the Public Service about the terms of reference for the review and the fact that the Public Service in the tradition of giving frank and fearless advice said that there should be fairly broad terms of reference so that the review could look at all those issues around productivity and flexibility which are so important when you discuss industrial relations. One of the members of that review, Professor John Edwards—former economic adviser to Paul Keating, former journalist, and I think now a member of the Reserve Bank board—has argued on many occasions that there is not much of a linkage between the industrial relations system and productivity. This is not right, there is a major linkage. But it was surprising that he, as an eminent economist, would make that sort of point. The reason I mention it here is that this was precisely the reason he was chosen to do this review, because of the disposition he brought to the review. So we ended up with hamstrung, politically determined terms of reference which largely guided, I think, the committee or the panel to the recommendations that they made.

There will be some areas in which we will support certain of the recommendations, because we think that they will advance certain issues that we have identified in our consultations with business, both large and small. But on the whole we are disappointed by the way that this review has gone forward. We should not be surprised that that was the method of carriage, because this has been a government which is owned lock, stock and barrel by the trade union movement. They bought this government with their 'Your rights at work' campaign in the run-up to the 2007 election.

It is true that the dragon of Work Choices did rouse some of the slumbering members of the union movement from the last part of the Howard years. That is true. But while Labor in parliament, particularly in that other place, argued about case studies of employees being allegedly exploited by employers, the real motive behind the trade union movement and its opposition to Work Choices came from the fact that they saw it somehow as an existential threat to them.

It was not an existential threat to them. In a competitive marketplace you earn the right to represent others. They were afraid of competition, they were afraid of contestability, therefore they put all their resources behind electing a government that would not only remove Work Choices but also turn the clock back on industrial relations even to pre the Keating era. It was the Keating government that, after the 1993 election, made the first major moves in the direction of enterprise bargaining. It was the Keating government that moved on enterprise bargaining even though they twinned it with some backward steps on unfair dismissals, which I will discuss later. But the point is that the bargain that was struck between the Parliamentary Labor Party and the trade union movement was to put in place this legislation which turned the clock back on industrial relations and undid some of the good work of not only the Keating period but also the Howard period, particularly in relation to things like Australian workplace agreements which added another layer of flexibility to the labour market.

That is the context in which all of this occurred. In fact in 2007, Julia Gillard came up with an extremely pro-union draft industrial relations policy that Kevin Rudd had to water down because of employer resistance in the run-up to the 2007 election. He became so worried about losing business support that he watered the policy down.

Then when they were in government the policy was implemented. It was an election commitment. A commitment was made that after two years there would be in effect a post-implementation review. That is where the review we are talking about today originated.

In the meantime, government has not only moved to put in place a more retrograde industrial relations system but also complemented it by a whole series of other measures that further entrench the role of trade unions in the workplace and the role of productivity-reducing employment practices. I am referring here to specific packages in areas like the shipping industry. The shipping reform package essentially gave concessions to shipping companies and gave important benefits to the Maritime Union of Australia. The Maritime Union of Australia promised, hand on heart, that there would be a productivity compact between the shipping companies and the MUA that would deliver major productivity gains that would offset the costs of the package we are talking about in the shipping industry. We are yet to see the colour of their money on the productivity compact, and we will be waiting awhile.

In the road transport sector we had the establishment of the transport remuneration tribunal under the guise of promoting driver safety. We all support greater driver safety, but this has become a mechanism for further regulation of wage rates in the transport sector. That tribunal works as a subset of Fair Work Australia so its genesis and outlook are very much from within that framework of Fair Work Australia.

In the building and construction industry we had the watering down of the Building and Construction Commission. It was defanged. In 2007 the now government said, hand on heart, that it would not water down the cop on the beat in the construction sector, but it has. We are seeing the impact of that in a number of industry sectors, particularly obviously construction and building. You just have to go to Victoria to see some of the disputes going on. In the centre of Melbourne there is the Grocon dispute and in Geelong as well there is a dispute. The one in Geelong I think involves the CFMEU. But my point is that the Fair Work Act is buttressed by a whole series of other actions that this government has taken to entrench trade union privilege in the Australian economy.

I turn now to superannuation, another area where the government allegedly is moving in the direction of greater contestability—in this case in relation to the default funds that workers can use for their superannuation. Again what will happen here is that advice will be provided by a panel and Fair Work Australia will make those judgements. Again it will therefore not be a genuinely open, contestable and transparent process where any eligible fund can be a default fund but it will be one which is very much controlled within the framework of Fair Work Australia.

This is where we come up against one of the greater achievements of the labour movement—that is, the way some of these organisations are staffed. In the case of Fair Work Australia we have had the debate in the context of this bill about the creation of two new senior vice-presidential roles. There has been much speculation as to the sorts of people who will occupy those roles. We have had speculation about Jeff Lawrence, a former Secretary of the ACTU, being appointed. It has been the tradition over the years to have employer and employee advocates and representatives become members of some of these quasi-judicial bodies. The speculation has been that it might be Jeff Lawrence, a former Secretary of the ACTU, or Josh Bornstein, a lawyer. Those who watched the ABC miniseries about the waterfront dispute will know that Josh Bornstein played a role in the waterfront dispute by sort of advising I think the MUA at that stage. Lately he has been tweeting advice to the Prime Minister about how to handle the AWU matter or seeking to promote her cause in that regard. He was recently quoted talking in a lecture about the lack of a link in economics between industrial relations systems and frameworks and productivity. Those are some of the potential candidates for senior vice-presidential roles on Fair Work Australia.

Any government has the right to appoint whomever it wants, but you need to have a process which gives confidence to people in the marketplace—employers and employees—that they will face a group of people who will be impartial, objective and consistent with the objects of the act in carrying out their duties. That is not what you would get here if you get these sorts of players promoted to these roles. We already know something about the sorts of players on these bodies. An overwhelming number of people appointed to Fair Work Australia have a trade union pedigree, including Bernie Riordan, a former official of the Electrical Trade Union, who was appointed in the last round. He mysteriously had civil proceedings against him settled the day before his appointment. If I recall correctly, Mr Riordan comes out of New South Wales and he not only was a trustee of his industry super fund but also was involved with a group called Chifley Financial Services, which provided services to that fund. That goes to the issue about the conflicts of interest that exist through the relationship between the trade union movement and some of the industry super funds and the fact that some of these industry people also provide services to some of these funds.

If I recall correctly, Mr Riordan at one stage was also one of the leaders of the opposition to the privatisation of electricity assets in New South Wales. At a time when you have Martin Ferguson, an ex-President of the ACTU and one of the real straight talkers in this government, calling on state governments to privatise their electricity assets in order to create a more competitive and more efficient national electricity market you have people like Bernie Riordan floating around Fair Work Australia bringing his age of the dinosaur views, if I can put it like that, into play on industrial relations. That is the nature of what we are dealing with here.

There has been debate in the context of this bill about the name of Fair Work Australia and the fact that 'fair work' will be retained. The reason 'fair work' will be retained is, as I understand it, that the Prime Minister herself intervened, because obviously she wants to create that link with the policy she took to the 2007 election.

What that tells you is that they are unreconstructed, that there is no appetite for taking reform forward. I have said it before and I will say it again: the trade union movement of 2012 is not a patch on some of the trade union leaders of the eighties and the nineties who were prepared to be in the vanguard of economic reform in the national interest. Yes, they got benefits for their members out of it but the point is they did something that was also in the national interest. They were able to balance the two in a way that was beneficial for all of us.

There has been discussion in recent days in another place about matters to do with the Australian Workers Union. All I will say on that point is that that discussion has highlighted a culture in parts of the union movement of standing over businesses in order to get contributions, accountability for which—as we have seen in certain parts of the AWU in the 1990s—was not what it should be. This culture of standing over companies and getting money—money which was not used for the purposes for which it was allegedly raised—raises important questions about the governance of the trade union movement. I think a future coalition government should take a very good look at the structure and governance of the trade union movement. It should be subject to a no-advantage test, as is the way I would put it; in other words, to create a level playing field between unions and other bodies that want to represent workers. What we want to create is a situation where it is a competitive marketplace in representing workers and where workers have all sorts of options, because it has got to be a system which is driven by the interests of the worker, the customer, and not driven by the interests of a union hierarchy—because today the government is driven by the interests of a union hierarchy and so is the labour movement. So we need that culture to change and you can only change it through competition and contestability.

I now want to turn to unfair dismissal. Here the government is making some adjustments in relation to the rules around unfair dismissal which we welcome in the context of dealing with potentially vexatious claims. Let me make this point in the context of my work with the Coalition Deregulation Taskforce, a very good task force of which Senator Bushby was deputy chairman and did an excellent job around the country. One of the areas on which we got a lot of feedback was unfair dismissal and that the concept, principle or phenomenon of going away money had returned, that it was much easier for an employer just not to have to worry about dealing with the matter through the fair work system and that an employer would in fact be getting advice from Fair Work Australia that the best thing would be 'just to settle this and move the person on'. Now that just creates an extra tax, a tax borne by employees, because if it becomes harder to fire there is less of an incentive to hire. Particularly when it comes to small business, we need to be doing everything we can to reduce the burden of regulation, compliance and paperwork on small business. So their having to shell out $5,000, $10,000, $15,000, $20,000 or whatever it is simply to settle with an employee because they cannot be bothered to go through the process, given the time that is required to deal with it in a more rigorous and thorough way, is a condemnation of the system as it stands. So for us any support for reform in that direction is welcome and we will of course support that.

We believe that the fair work review should have gone further. It should have looked not only at the matters discussed here today but also particularly at what is happening in the building and construction industry. There should be more focus on this. Martin Ferguson, the Minister for Resources and Energy, made it very clear recently that he was concerned about the upsurge in costs associated with infrastructure investment and building and the impact that would have on our competitiveness in the mining and resources industries. He called an end to the price boom in the mining and energy market. What he was talking about was that now was the time for the hard yakka of extracting the volumes and that to extract the volumes required being competitive. It does not mean cutting people's wages but it means restraining our costs and boosting our productivity, and these are all issues that the government has tended to sweep under the carpet. These are all issues for which the government has tended to in effect say, 'Well, look, if costs are high in Australia it's because we've got a high exchange rate and that explains most of it.' Well, it does not explain most of it. The high exchange rate is a factor but the fact of the matter is any respectable international survey will show you that over the last five years our cost structure has gone up considerably. We are one of the highest cost locations in the world, both in a consumer sense and an industry cost sense, and it is getting worse.

The challenge we face in the years ahead, as the terms of trade settle given all the rest of it, is that the hard yakka to create jobs and to create higher real incomes and living standards will come from improving our productivity and improving our competitiveness. This bill in its current form does nothing to address any of those issues. It is window dressing of the type that we have come to expect from this government. There will be no change on this front until we have an honest discussion about the parameters around industrial relations policy and we have a government which is willing to enforce the law and make everybody, including the trade union movement, subject to the law.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Amendment Bill 2012. Whilst the coalition has some serious concerns with this bill, as Senator Abetz has advised we will not be opposing it, albeit Senator Abetz will be moving amendments during the committee stage. The coalition supports a majority of the recommendations from the fair work review. However, we note, in relation to this bill, that the government has yet again failed to stand up to the union bosses and is only implementing non-controversial recommendations from the fair work review in the short term. That is hardly surprising to anybody on this side of the chamber. Why would the government want to stand up to the people who are their best mates? In relation to the fair work review itself, the coalition believes that the terms of reference deliberately excluded the vital ingredients of productivity, flexibility and union boss militancy and were clearly, without a doubt, skewed towards a predetermined outcome.

Coalition senators understand, as do the majority of the Australian people, that when a Labor government that is made up of former union bosses, and held accountable only by and to its union mates, makes changes to the industrial relations system in Australia, those changes are never about increasing productivity. They are never about, as Senator Sinodinos so eloquently said, furthering the Australian economy and they are never about what is truly fair for the average worker or for the person who is employing the average worker. They are only ever about Labor delivering on a promise that it has made to one of its union mates. That is hardly policy that has been made in the national interest.

Despite the review being a disappointing document on so many levels, we do note that in relation to certain issues there is no doubt that the reviewers, albeit that they were hand-picked by the Labor government, were without a doubt mugged by the reality that the current system is just not working. I take the Senate to some of the recommendations that the fair work review panel made: that Fair Work Australia and the Fair Work Ombudsman should actively encourage more productive workplaces through the promotion of best practice model productivity clauses for modern awards and agreements; changes to the individual flexibility agreements to make them more attractive to both employers and employees, including an increase in the minimum term from 28 days to 90 days; changes to the way in which greenfields agreements are reached and provisions for protracted negotiations; and changes to the good faith bargaining provisions of the act to rectify very serious problems that were identified in the JJ Richards case.

The recommendations that I have just read out, which were made by Labor's own fair work review panel, are recommendations in relation to issues that the coalition has for some time now been drawing attention to and that, I note, both the Labor Party and the union bosses have consistently attacked us on. However, what do we have now? We have Labor's own hand-picked review panel picking up on the issues that the coalition has been highlighting for some time and making recommendations in that regard. One can only hope that, after the government has once again freely spent a million dollars of taxpayers' money and now finally has a review in its hot little hands, it may at some point in the future decide to give consideration to what are very good recommendations coming out the review going forward.

In relation to the bill itself, we are yet again disappointed that the government has rushed through the relevant committee a significant bill that will affect each employer, each employee and each independent contractor in Australia without, once again, the parliament being able to undertake a fulsome inquiry. The bill was introduced into the House of Representatives at 4.30 pm on 30 October. The bill was then called on for debate the next morning, on 31 October, and a vote was taken later on that day. To date, the Minister for Employment and Workplace Relations has given no explanation to the parliament as to why there is a critical need to pass this legislation without subjecting it to the scrutiny to which it should be subjected. In that regard, I echo the comments of Senator Sinodinos, whom I am following in this debate. If one looks at the speakers list on this exceptionally important piece of legislation, you would actually think that the only people who care about industrial relations in this country and who are concerned about the negative impact that this bill may have are coalition senators. There does not appear to be anyone other than the minister on the Labor side of the house who is prepared to come into this place and justify why the government is not implementing more of the recommendations from the fair work review.

One might say that perhaps those on the other side are a little embarrassed that one of the things that this bill will do is create two additional jobs for their mates. In fact, maybe their mates have already been hand-picked and they are just waiting for the announcement. I can only assume that those on that side do not care about industrial relations in this country or do not care about the negative impact this bill may have on productivity going forward, or perhaps they are just too embarrassed to come in here and explain why, contrary to evidence given to a Senate inquiry, they are going ahead with creating additional jobs for their mates.

The bill itself purports to implement the first tranche of 17 recommendations arising from the government's review of the Fair Work Act. The bill also seeks to make changes to the internal architecture of Fair Work Australia and provide the Fair Work Australia president with further powers. In addition, the bill implements the government's response to the Productivity Commission review into default superannuation arrangements in modern awards. This response will see the continuation of the process where conflicted parties within Fair Work Australia will continue to select default super funds under modern awards.

The coalition has a longstanding position in relation to this and we believe that any MySuper compliance superannuation fund should be eligible for selection as a default fund. For the Labor Party, though, it is all about their mates in industry funds. In fact, when the Prime Minister said, 'There'll be no carbon tax under a government I lead,' she would perhaps have been better off saying, 'There'll be no competition in relation to superannuation funds under a government that I lead,' because that is exactly what we are seeing as a result of this legislation. The coalition is deeply disappointed that the government has introduced legislation into parliament which, instead of ensuring genuine competition—but the government does not like competition; it does not like competition because it might be shown up—will impose an additional layer of government intervention in the default fund market. The coalition is also extremely concerned that Minister Shorten has been so desperate to protect the vested interests of his friends in the union movement that he has actually lost sight of his responsibility as a minister of the Crown to act in the public interest.

I alluded to the fact that this legislation is creating further jobs for Labor government members' mates—jobs for the boys; jobs for unionists. Well, it does. The bill also contains the creation of two additional vice-president positions at Fair Work Australia, two of the highest officers in the organisation. Minister Shorten has completely failed to explain to the parliament why these positions are necessary or justified, apart from the department's submission that the President of Fair Work Australia sought the additional roles. These two positions would slot into the second and third most senior officers of the tribunal. Since the announcement of these two additional positions, there has been widespread community concern, including from within Fair Work Australia.

Proceedings suspended from 18:30 to 19 : 30