Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Labor opposes the Fair Work Amendment Bill 2014. This bill is yet another example of the Abbott government's failure to keep an election commitment. The election commitment of the Abbott government in this area was to go no further than what had been set out in their pre-election policy material—yet another commitment now on the election promise scrapheap! This bill is another example of the Abbott government's ideological opposition to collective bargaining. We know all about the opposition to collective bargaining and workers' rights that permeates the coalition. This bill is another example of the Abbott government's determination to weaken and eventually destroy effective trade unionism in Australia.

We should not pretend that this bill is about some minor amendments to the Fair Work Act. This is part of an overall strategy by the coalition to destroy collective bargaining and destroy the rights of working people in this country. It is part of the government's suite of bills to reshape industrial relations by empowering employers and the big end of town at the expense of employees.

This is a government who made the promise prior to the election that it would go no further than its pre-election promises, yet what do we see here? Another broken promise. This is a government that cannot be trusted. I think that the Australian public are over this government. They do not trust this government, because they have seen what this government is doing on education, on health, on pensions, on welfare, and to the ABC and SBS. These are all areas that this government said it could be trusted on. Well, the public has absolutely no trust in this government. It really is a government of incompetence, chaos and division. We see that incompetence played out on the front pages of newspapers every day. We see that incompetence in the House of Representatives. We see that incompetence here. We see policies being ditched and we see barnacles being scraped off; the scraper is going so hard that the hull is now paper thin and about to puncture. This is a government that is chaotic and incompetent.

The division in the coalition does not lead anyone to have any confidence that this government will ever adopt policies based on fairness and integrity. On economic issues, on budget issues and on industrial policies, this government cannot be trusted. Through this legislation, the government wants to provide more power to the already rich and powerful in this country. It wants to create more insecurity for the poorest in this economy. It wants to create more uncertainty and fewer rights for the working poor and for the workers who can actually collectively bargain and stand up for their rights. This government wants to diminish all of those issues. This really is about promoting more income insecurity for ordinary workers in this country. I will come to some of the reasons for that, further down the line.

The purpose of this bill is, supposedly, to implement the recommendations of the Fair Work Act review and to implement election commitments. Well, the government is not implementing the recommendations of the Fair Work Act review. This legislation goes further than the government's pre-election commitments, and it ignores some of the checks and balances in the Fair Work Act review. Again, this is a demonstration that this government cannot be trusted even to implement its election promises.

There are substantive amendments to the Fair Work Act in this bill. There are substantive amendments to greenfield agreements, to union rights of entry and to individual flexibility agreements. There are some detailed issues in the structure of the bill and there are two schedules to the bill. Schedule 1 contains the substantive amendments to the Fair Work Act and schedule 2 deals with application and transitional matters relating to those amendments. Schedule 1 consists of 10 parts. Parts 1 to 3 make amendments to the National Employment Standards in part 2-2 of the Fair Work Act in order to deal with unpaid parental leave, annual leave and preventing employees from accruing and taking annual leave or any other type of leave while absent from work and in receipt of workers compensation.

Part 4 amends part 2-3 and part 2-4 in relation to the requirements for flexibility terms in modern awards, and the enterprise agreements and individual flexibility agreements made under those terms. Amongst other things, it will allow employers and employees to make IFAs about when work is performed, overtime rates, penalty rates, allowances and leave loading, if these matters are dealt with in the particular enterprise agreement. We know that the employers are doing the bidding of the Abbott government by raising their voices about penalty rates and, vice versa, that the Abbott government is doing the bidding of employers on the issue of penalty rates. If you reduce penalty rates then you reduce the costs of companies, and in my experience that simply means more money to the chief executive and the big end of town. So we are not prepared to accept this proposal.

Part 5 amends part 2-4, 'Enterprise agreements', and introduces changes to greenfield agreements. It says:

… where agreement cannot be reached with a union within three months, a business will be able to apply to the Fair Work Commission for approval of the agreement.

What this means is that the employer simply gives three months notice that it wants to reach an agreement and there are no checks and balances in terms of the bargaining process: it can simply give that notice, walk away or get some high-paid lawyer to argue that it has been bargaining in good faith, and then go to the Fair Work Commission to have the agreement approved. It really is the employer bargaining with itself.

Part 6 of schedule 1 to the bill amends transfer-of-business provisions in part 2-8 of the act and provides that there will not be a transfer of business under that part when an employee voluntarily moves between associated employers. That is a real problem, because it means that you could have no option but to move to that associated employer and lose all of the entitlements that you would have under the redundancy agreement with the existing employer

It is simply about allowing employers to get away from paying out the rightful accrued entitlements of an employee.

Part 7 amends the provisions dealing with protected action in ballots, in part 3-3, and it provides that an application for protected action cannot be made unless bargaining has commenced. This is one rule for the unions and another rule for greenfield sites for the employers. The hypocrisy is huge.

Part 8 tightens the right-of-entry framework, in part 3-4, by narrowing the eligibility rules for entry for discussion purposes. It repeals amendments made by the Fair Work Act 2013, it reinstates pre-existing rules regarding the location of interviews and discussions and it changes the Fair Work Commission's capacity to deal with disputes about the frequency of union visits to premises for discussion purposes. This is about the ideological view that there is no room for the union movement to represent its members at the enterprise in this country. It is about trying to stop workers having representation from their union and it is about putting up as many barriers as possible to the union movement gaining access to represent its membership.

Part 9 provides that, subject to certain conditions, the Fair Work Commission is not required to hold a hearing or conduct a conference when determining whether to dismiss an unfair dismissal application under section 399A or section 587. So this again is about ensuring that the employer's position is bolstered under the Fair Work Act. And the Fair Work Act, if this gets up, cannot be called the Fair Work Act any longer, because it is not the Fair Work Act; it is an act in support of employers.

The 10th part provides that the Fair Work Ombudsman pay interest on moneys recovered by the Commonwealth for workers who were initially unidentified and then are later found and reimbursed. Parts 1 to 9 clearly are impediments to collective bargaining. They are impediments to workers being able to join and effectively engage in trade unionism in this country. It is about giving more power to the employers in this country, at the expense of working people in Australia.

I came across an interesting article from the IMF, the International Monetary Fund, by Florence Jaumotte and Carolina Osorio Buitron. One is a senior economist and one is an economist at the IMF's research department. Their paper is called Power from the people. It is an analysis of how the decline in trade union rights and trade union density means that more money goes to those at the top of the tree in the countries where unionisation declines. When you see the IMF look at these issues, you then understand the problem that we are facing in this country—that the ideological position of the coalition is to diminish the power and capacity of the trade union movement, to give more rights to the employers so that the employers are more well off, mainly at the chief executive and director levels, at the expense of ordinary workers in this country. When the IMF start to see this, you know that there is a problem. They say:

… the most striking development is the large and continuous increase in the share of total income garnered by the 10 percent of the population that earns the most …

So you decline union capacities; you decline union influence in the economy; the top 10 per cent get better off; and the bottom can please themselves. This is what the IMF is seeing, and this legislation that is before us is exactly the type of legislation designed to disempower workers and make sure that the top 10 per cent are better off and the bottom rung of the economy, the bottom rung of working people, are worse off. They go on to say:

Moreover, a rising concentration of income at the top of the distribution can reduce a population's welfare if it allows top earners to manipulate the economic and political system in their favor.

That is Joseph Stiglitz quoted in the IMF paper. We see here how the top earners are manipulating the economic and political system in their favour. They are out there arguing to cut back penalty rates. They are out there arguing to lower minimum rates. They are out there arguing to keep unions out of the workplaces because, if they are successful in that, then what happens? The top 10 per cent become more wealthy, at the expense of ordinary Australians. The IMF document says that economic research has recently focused on:

… the effects of institutional changes, with financial deregulation and the decline in top marginal personal income tax rates often cited as important contributors to the rise of inequality. By contrast, the role played by labor market institutions—such as the decline in the share of workers affiliated with trade unions and the fall in the minimum wage relative to the median income—has featured less prominently in recent debates.

The authors say:

We examine the causes of the rise in inequality and focus on the relationship between labor market institutions and the distribution of incomes, by analyzing the experience of advanced economies since the early 1980s.

This is not an analysis of some small, isolated economy. These are the top economies in the world being identified by the IMF as a problem. When you take away the rights of ordinary working people, it then goes to the top 10 per cent. They say that:

… the main channels through which the labor market institutions affect income equality are the following:

Wage dispersion: Unionization and minimum wages are usually thought to reduce inequality by helping equalize the distribution of wages.

They say: 'economic research confirms this.' So what do this mob across here want to do? They want to stop that happening. The authors go on to say:

Unemployment: Some economists—

and we have heard them argue over here, not that there are any decent economists over on the other side of this chamber—

argue that while stronger unions and a higher minimum wage reduce wage inequality, they may also increase unemployment by maintaining wages above "market-clearing" levels, leading to higher gross income inequality. But the empirical support for this hypothesis is not very strong …

So, on the argument of keeping wages low, the IMF are actually saying there is no empirical evidence for that; or, if there is any evidence, it is not strong. This legislation—this package of legislation that has come before the Senate—is designed to make sure they look after the big end of town at the expense of ordinary workers. The authors talk about redistribution. They say:

Strong unions can induce policymakers to engage in more redistribution by mobilizing workers to vote for parties that promise to redistribute income or by leading all political parties to do so.

A clear example of that is the budget. This combination of the budget—the unfair budget; the budget based on lies—along with these attacks on workers' rights and conditions, as epitomised in this piece of legislation, is all about an ideology. It is not based on empirical evidence such as the IMF is looking at. It is not based on the welfare of ordinary Australians. It is based on this ideology—this economic argument that, if you reduce wages and you reduce conditions, you will create more jobs and open up the economy for more people. The IMF is saying that is flawed. But the mob over there on the other side of this chamber are too engrossed in their own problems to even worry about what the IMF is saying. They are too insular in their attacks on the trade union movement to worry about what the rest of the world is saying and the analysis that is out there.

This is another piece of unfair legislation from a government that has unfairness at its core. It is about workers being denied their rights to collectively bargain; about workers being denied their rights to effectively organise; and about ensuring the top 10 per cent—their mates that look after them and put money into their election accounts—are looked after at the expense of ordinary workers in this country.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Amendment Bill 2014. The Prime Minister used to say that Work Choices was 'dead, buried and cremated', but in reality this bill represents a return to Work Choices. It is not about giving people more flexibility. It is about giving bad employers even more power over vulnerable people, who are already in a worse position because of the unfair federal budget.

Most of us would think that an agreement applying in the workforce involves at least two people—at least two parties. But under this legislation an employer is now going to be able to agree with themselves about what legislation and minimum conditions would apply in their workplace. The provision about so-called 'greenfields agreements' says that if a business is about to start a new project—that might be to, say, dig up the minerals that all Australians own, because we only get to dig them up and sell them off once—and if they want to negotiate an agreement for wages and conditions over the course of that project when it gets up and running, all the employer needs to do is put a substandard agreement on the table and say, 'Here's what I want.' If, three months later, there has been no agreement they are able to go to the Fair Work Commission and get the agreement ratified. They do not even need another party to the agreement. They just have to decide it themselves. I am not at all confident that a wealthy miner is going to look after its workers when it does not have to. It is going to pay the least it possibly can, and that is what this legislation allows it to do.

We have also seen this obsession of the government, which is reflected in this bill, about employees having access to their union representatives at reasonable times. In many workplaces, often the only way workers will find out about what their entitlements are is from a union representative who comes in and tells them, 'No, actually; there are laws to protect you and you are entitled to be paid properly as a member of the Australian community.' Yet what we see here in this legislation is a winding-back of the provisions that would allow someone to come in and give that explanation. We know that what some unscrupulous employers do at the moment, or have done in the past, is to say, 'Sure, you low-paid worker—you can find out what your minimum legal rights are. But I'll tell you what I'll do: I'll put the union representative, when they come during your lunch break, in the room next to my office and I'll just sit there with a clipboard making a note of every worker who comes in to get advice about what their minimum conditions are.' We all know what could then happen to those workers.

Currently, the law says you cannot do that. You must strike the right balance between not disrupting the workplace and allowing people to find out what their minimum entitlements are. That is abolished under this bill. When you think about this from the perspective of a vulnerable worker, who may not have English as their first language, how are they going to find out about their rights? They simply will not. That will be the practicality of it. That is exactly what this legislation is designed to do.

The bill tilts the playing field further in favour of powerful employers by allowing them to just sit there, fold their arms and say, 'We refuse to engage in discussions with you about an enterprise agreement.' Plus, it will take away the only thing that the employees have the right to do in that situation, which is their right to industrial action. At the moment, if your boss refuses to negotiate with you, you are allowed to say, 'We are going to start stop-work meetings,' or 'We are going to go on strike until you strike a deal with us.'

You would think that workers should be given the right to go to Fair Work and say, 'Look, we just cannot strike a deal and we have been trying; why don't you decide as the independent umpire?' But this bill does nothing of the sort. In fact, it does not allow them any help. It further ties their hands and allows the employer to sit there and say, 'I am just not going to negotiate with you.'

These are just some of the measures in this bill. There are others that say if you have happened to accrue annual leave loading and other reasonable measures during your time at work, and it turns out that you get sacked before you have had the chance to take them, do not expect to get your full entitlement paid out—you are only going to get part of it. These are measures that you have legitimately accrued during your time working for this employer.

When one looks at the other provisions, you can see that the government has gone back to the previous Fair Work review and just picked the eyes out of it, putting forward only those measures on the employers' side of the ledger, but there is nothing there to balance it up on the other side. That is why the Greens will not be supporting this bill. Instead, if we get to a third reading of this bill, I will be moving some amendments, to remove these clauses of this bill and, instead, substitute them with other clauses that would actually benefit working people in this country. The Greens want to improve conditions for working people, not just to have them desperately fighting to hang onto current conditions.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Well knock it off at the second reading then.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

We will try to, absolutely. We reckon a real Fair Work bill would tilt the tables the other way to genuinely make work fairer. Our amendments, if we get to the third reading, would give workers more job security and allow workers to have the flexibility that works for them, so that they can have the time off to pick up the kids, to drop them off at school or, perhaps, to look after a sick grandparent.

I want to spend some time talking about these amendments here and now because our amendments would actually create a bill that really was a fair work bill, that really would provide for flexibility. A big reason that we hear the term 'work-life balance' so much these days is because we have less balance than we should between the two; between the amount of time and effort and dedication to work as opposed to the rest of our life—family commitments, community commitments, time for exercise, leisure, doing activities that are good for our health, including sleeping. It did not used to be this way and it does not have to be this way.

The figures show that the average full-time working week in Australia is 44 hours—the longest in the developed Western world. Research shows that these sorts of working hours are impacting on our wellbeing, with poorer health and greater use of prescription medications. It is also affecting our personal and family lives. Sixty per cent of women say that they feel consistently time pressured and nearly half of men also feel this way. Almost half of all fathers in couple households work more than they would prefer, and one-third of women working full time would also prefer to work less, even taking into account the impact that this might have on their income. If you want to talk about flexibility then consider that, 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, we work $72 billion of unpaid overtime each year as a country. 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.

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 should be. The Greens want people to have more control over their time and their working arrangements. We need a better match between the hours people want to work and the hours that they actually work. I note that the ACTU, prominent academics, Carers Victoria, government advisory bodies and many others have also advocated extending the right to request flexible working arrangements.

The current legislated mechanism to request flexible working arrangements is only available to employees who have caring responsibilities for children under school age, or children under 18 with a disability. Employers can refuse on reasonable business grounds, but there are no mechanisms for appeal. The mechanism is well-intentioned but it is narrow and unenforceable. It can be strengthened and it should be strengthened. If we had a bill with these measures included in it, it would be strengthened. The amendments we will move also reflect the Greens view that wherever possible enterprise bargaining and enterprise agreement should be the best mechanism for providing better industrial outcomes.

'Flexible working arrangements' would be inserted into the list of permitted matters that can be included in an agreement. In all instances, the right to request flexible working arrangements to all employees would be able to be refused by employers. The right to request would be strengthened for those with caring responsibilities with employers only able to refuse where there are serious countervailing business reasons. Ongoing employees must have performed a minimum of 12 months service before a request could be made. If an employee's request for flexible working arrangements was refused, Fair Work Australia would be empowered to hear an appeal and where appropriate make flexible working arrangement orders.

Allowing workers to have more control over their time would be a productivity bonus for the economy. Businesses would benefit from this reform, including employers who are already promoting flexible working arrangements so that employees can achieve a better work-life balance. Satisfied employees are likely to remain in a workplace longer, be healthier and be more productive. If people want to work different hours or to work from home so that their life is better, then the law should allow it and society should encourage it, provided that it does not unduly impact on their employer.

Our amendments recognise that carers play a special role in our society. Caring for those close to us must be a central concern for our society, and it is important for the economy. People need greater control over their time, not just to look after kids but also, increasingly, to look after parents and grandchildren, as well as foster children, people with disabilities and people with extended illnesses—the list goes on and on. For this reason, our amendments define 'carer' simply as an employee who has responsibility for the care of another person. In addition, as I have referred to, the bill raises the threshold test to serious countervailing business reasons before employers could refuse a request for flexible working arrangements.

There are more women working more hours in paid employment but there is still the unpaid caring to do. With caring still done predominantly by women, there is a growing double burden on women and their families. If we are serious about supporting women in returning to work after having had kids then we can and should do many things, not only expanding accessibility, quality and affordability of child care but also giving a legally-enforceable right to flexible working arrangements. As I have referred to, the provisions do not remove the capacity for managerial decisions to be made regarding working hours and working arrangements. If there were legitimate business reasons against a request it would be able to be declined.

These measures are not radical nor unprecedented. A number of countries have various types of legislative mechanisms for people to request flexible working arrangements, and a serious-countervailing-business-reasons test has been used in the Netherlands since the year 2000. A review of flexible working arrangement laws in Germany, the Netherlands and the UK showed that a number of valuable lessons had been learned and that a number of myths had been dispelled 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. But, significantly, the majority of the requests in each country were acceptable to employers. Costs were not a major problem with implementation, and sometimes even resulted in savings. In addition, 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. 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 considered previously.

If our amendments were passed, it would not undermine those very important industries and sectors, like fire fighters—and there may be many others as well—where control over working time is necessary to ensure that there is not industrial arguments between people working differing hours side by side in environments where harmony and consistency, and equality of payments and arrangements, are necessary. As I said, it would not override management prerogative. Our amendments would help to drive positive cultural change in relation to flexible working arrangements by providing a clear framework and criteria for requests. Importantly, they would begin to remove the stigma of fathers and mothers—indeed, anyone who has to care for another person and anyone who wants to have more control over their life—requesting that change.

We urge the Senate to reject this bill as it currently stands. But if it were to get to the third reading stage, our amendments would radically change the bill. We would want to see them supported to truly give workers the flexibility and work conditions that they deserve.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I thank other senators for their contributions to this debate on the Fair Work Amendment Bill 2014, I think if only to highlight some of the absurdity that the Labor Party and the Greens continue to argue in this space.

It is always good to follow Senator Cameron, particularly when he is in lockstep with his Greens colleagues and arguing that what we really need to do to get prosperity in this country is to redistribute all the wealth. That was what Senator Cameron was arguing: it could have been written by Karl Marx himself. It was an extraordinary contribution, ignoring the progress we have seen not just here in Australia but in many other countries over the last 30 years in economic prosperity, which has involved flexibility. It has actually involved increased flexibility, which has led to increased wealth and increased prosperity right across the income scale in Australia. I will get to that.

Senator Cameron seems to believe that the only way to create prosperity is to redistribute wealth. Well, we happen to have a very different view. In response to Senator Cameron I will quote from the coalition's dissenting report into the extent of income inequality in Australia. There we quoted Professor Robert Lucas, who notes:

Of the tendencies that are harmful to sound economics, the most seductive, and in my opinion the most poisonous, is to focus on questions of distribution.

…   …   …

… of the vast increase in the well-being of hundreds of millions of people that has occurred in the 200-year course of the industrial revolution to date, virtually none of it can be attributed to the direct redistribution of resources from rich to poor. The potential for improving the lives of poor people by finding different ways of distributing current production is nothing compared to the apparently limitless potential of increasing production.

That is fundamentally what we are talking about. When Senator Cameron talks and gives his view of the world, and criticises the last 30 years of economic growth and reform, he is arguing, 'If only we'd gone down the path of East Germany, rather than West Germany. If only we'd gone down the path of Cuba, or down the path of the former Soviet Union, then we'd all be a whole lot better off.' I would say that virtually all Australians would realise the absolute folly of such an argument. It is about growing the economy, and in growing the economy we need policies that are fair but that encourage growth, that encourage productivity, that encourage prosperity; not look to simply redistribute an ever-decreasing pie. That appears to be Senator Cameron's argument and it is of course backed up by Senator Rice.

The coalition government is committed to building a strong economy. We are committed to dealing with Labor's legacy of debt and deficits. A key way we can build our economy and deal with this legacy is through boosting productivity. This bill will deliver on the coalition's election promise to improve workplace flexibility and to address the imbalance in union workplace access rules.

Unions represent 13 per cent of the private sector workforce and 20 per cent of the overall workforce, yet the previous Labor government did everything they could to increase union power and influence. And now we have seen the results of allowing unions free reign over workplaces.

Here is a very small snapshot: we saw eight days of unlawful industrial action by AMWU and CFMEU on a WA site, the Woodside LNG project, in 2008; we saw CFMEU officials threatened to stop work at a Lend Lease site in Adelaide if the union flag was not flown—they said, 'If you don't put it up there [union flag on the crane], we'll bring back ten brothers tomorrow and stop the job'; there were alleged threats of retaliatory disruptive industrial action if a Darwin building firm did not give in to CFMEU demands; a WA unionist unlawfully told CFMEU union members to stop work five times at the Probuild Construction site in Perth and unlawfully coerced subcontractors to enter an enterprise agreement with workers. Just this year, we saw a Western Australian union boss fined $35,500 for bullying workers and threatening to have one contractor's workers thrown off 'every construction site you're on in Perth', if they did not participate in a strike. The list goes on and on and on.

So, when Senator Cameron talks about 'more power to the rich and powerful', he could easily be referring to the likes of the CFMEU, because that is what the Labor Party did when they were in office. They gave more and more power to unions who, in the majority of cases, had far more power than the individual businesses or the individual employers who they happened to be dealing with. We know that that is particularly the case in places like Victoria, where the Andrews government is absolutely owned by the CFMEU—lock, stock and barrel—as is the Labor Party more broadly and, as we are seeing over time, the Greens.

The government has already introduced legislation to reinstate the ABCC to deal with some of these issues. We look forward to getting support for that bill. But they need to do the right thing on this issue as well. By restoring balance and fairness to the Fair Work system, we will see less of this union thuggery and fewer damaging and unnecessary productivity losses through unions getting control of workplaces. This bill is in fact delivering not only on our election commitments, but on Labor's commitments from 2007. It also enacts a number of recommendations from the Fair Work review panel in its 2012 report, commissioned by the now Leader of the Opposition, Mr Shorten.

Through this bill we are restoring balance to the system in a number of ways. Firstly, we are improving the process for the negotiation of greenfields agreements, to ensure that unions can no longer frustrate bargaining for these agreements through unsustainable claims and delays, which can threaten investment and delay the commencement of major new projects that are crucial to our prosperity. Secondly, through this bill we are restoring union workplace access rules, reflecting those in place prior to Labor's unbalanced amendments, and dealing with excessive right-of-entry visits by union officials. The bill will also improve workplace productivity and flexibility by enhancing the scope for employees to make individual flexibility arrangements that meet their genuine needs, as determined by those employees. The bill will close the 'strike first, talk later' loophole in the good faith bargaining rules, which Labor refused to address. And, the bill will maintain the value of unclaimed wages held for workers by the Commonwealth.

The Fair Work Amendment Bill will address the current imbalance in union workplace access rules. Our changes will fairly and sensibly balance the right of employees to be represented in the workplace, if they wish to be, with the right of employers to go about their business without unnecessary disruption. The government sees right of entry as a specific statutory privilege to which conditions ought to apply. As we have seen with some of these examples, some union bosses do not.

In 2007, the Labor Party promised on multiple occasions that there would be no changes to the union right-of-entry laws. In a press conference on 28 August 2007, then Deputy Leader of the opposition, Julia Gillard said: 'We will make sure that current right-of-entry provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right-of-entry provisions.' On 26 June 2007 Julia Gillard said: 'We would not want to see changes to the right-of-entry systems that jeopardise work performance.' These promises were not kept and unions were given much easier access to workplaces under the Fair Work Act provisions which were exploited.

This has meant that many businesses face excessive workplace visits from unions, even when their employees are not union members and have not asked for the union's presence. The problem has been exacerbated in some workplaces by unions competing to represent employees at the workplace. The problem was highlighted by the former government's Fair Work review panel, which noted that the Pluto LNG Project received over 200 right-of-entry visits in only three months. BHP Billiton's Worsley Alumina plant faced 676 right-of-entry visits in a single year. Our changes will reduce the capacity for unions to deliberately harass and disrupt businesses in this way.

A recent case featuring CFMEU National President Joe McDonald has underlined the urgent need for these reforms. In the most recent case, where Mr McDonald and the CFMEU were fined $193,600, he ignored consistent requests to leave a site owned by Citic Pacific's Sino Iron Ore in Western Australia. When asked to leave the site because he did not have a right-of-entry permit, Mr McDonald replied, 'I haven't had one for seven years, and that hasn't stopped me'. Mr McDonald's attitude reflects the regrettable dark underbelly of the union movement that should have no place in modern and fair workplaces.

To be clear, these amendments will enact Labor's publicly stated promise prior to the 2007 election, a promise that was not honoured. Given that the Labor Party, in opposition, with the strong support of the union movement, supported this 2007 policy platform, we expect that these amendments will not be contentious. Most union officials will find that these changes will not impact their sensible approach to their right-of-entry activities. Currently, right of entry for discussion purposes can occur when the relevant union is entitled to represent the industrial interests of employees at the workplace. This means unions can enter and hold discussions even if they have no actual members at that workplace and no-one has sought their presence.

The bill will amend the provisions so that the ability for unions to enter a workplace will be tied to either a union's recognised representative role at the workplace or employees at the workplace requesting the union's presence. A union will only be entitled to enter a workplace for discussion purposes if (1) they are covered by an enterprise agreement or (2) they have been invited by a member or employee that they are entitled to represent. If the employee who would like the union to come to their workplace wishes to remain anonymous, a union will be able to apply to the Fair Work Commission for an invitation certificate. The Fair Work Commission must issue a certificate if it is satisfied that a worker who performs work on the premises and whom the union is entitled to represent has invited the union to the workplace to hold discussions. The certificate will not identify the employee who has made the request. This will restore the balance in the right-of-entry regime so that it is similar to the commencement of the Fair Work Act—that is, consistent with the bipartisan consensus at the time of the 2007 election.

This bill will also make amendments to provide clarity and certainty for employees around the use of individual flexibility arrangements. IFAs are an important tool introduced by Labor to allow employees to mutually agree on conditions that suit their needs, while ensuring employees are better off overall compared to their underpinning employment instrument. IFAs are important in helping workers manage childcare arrangements, caring responsibilities and other family or personal commitments. The reality is many people need this flexibility on a range of issues as they work and live their lives, but unions have been able to restrict this flexibility to only cover a single issue, such as taking leave. This means that workers might be denied IFAs on other matters even if their employer agrees to more suitable arrangements.

The amendments deliver on a promise made by Labor in 2007 to allow IFAs to be made in relation to all matters currently prescribed in the model flexibility term and will ensure these arrangements cannot be vetoed by union bosses. In 2014, when most families have parents who both work and single parents have to juggle work and family, it is astonishing that Labor were so beholden to their union mates that they did not allow for this flexibility. If you talk to, in particular, women who are juggling family responsibilities, that kind of flexibility is absolutely crucial. Safeguards remain in place to ensure workers are better off overall. The current legislation, enacted by former Prime Minister Gillard, already allows benefits that are non-monetary to be considered in whether an employee is better off overall under an IFA. These amendments simply clarify this matter and will provide certainty for employees and employers in these arrangements.

Prior to the 2007 election, the then Labor leader, Kevin Rudd, said:

… industrial disputes are serious. They hurt workers, they hurt businesses, they can hurt families and communities, and they certainly hurt the economy.

He also said, of employees:

They will not be able to strike unless there has been good faith bargaining.

But, under the Fair Work Act, employees are allowed to strike before bargaining has even commenced. The bill will amend the Fair Work Act to provide that protected industrial action can only be taken if bargaining for a proposed agreement has commenced. This amendment will mean that industrial action cannot be the first step in the bargaining process, restoring a balanced and harmonious approach to enterprise bargaining. The coalition will fix this loophole, and, in doing so, Labor's 2007 promise will finally be implemented.

This bill also deals with what amounts to union veto power over greenfield arrangements, which has enabled them to delay and frustrate these projects by seeking exorbitant wages and conditions or refusing to agree to anything at all. These delays are bad for the economy and bad for workers, who are denied an opportunity for a job because these projects cannot get off the ground thanks to unreasonable union demands. We need to encourage investment, and businesses will not invest in projects when unions are making unreasonable and unsustainable demands about wages and conditions.

This bill will extend good-faith-bargaining rules to the negotiation of greenfields agreements to improve standards of bargaining conduct. This good-faith rule means that unions and employers need to attend meetings and respond to requests in a timely manner. There will also be an optional three-month negotiation time frame that applies when the employer and the union give appropriate notice. Again, this is a fair and reasonable measure. Employers and unions should be able to come to the table and negotiate in good faith and get a reasonable outcome. We need to unlock new investment and give certainty to businesses that can create jobs and grow the economy. That cannot happen if there are needless delays in negotiations. These amendments will send a strong message to investors overseas that Australia is open for business.

In conclusion, this legislation, in large part, simply seeks to implement what the Labor Party promised they would do, prior to the 2007 election. They failed to honour that promise. What we have seen over the past few decades, contrary to the assertions of Senator Cameron earlier, is incremental and sensible labour market reform which has led to greater prosperity in our nation. Some of that has been implemented by the Labor Party and some of that has been implemented by coalition governments. To argue, as Senator Cameron has, that, as a result of any sort of flexibility or anything that in any way curbs excessive union power, workers would suffer, is absolute rubbish and is absolutely contrary to the lived experience. The lived experience is that these kinds of sensible improvements have led to higher wages, better conditions and greater prosperity. That is surely what we should be aiming for as a nation. This bill goes some way towards that. These are sensible amendments and they deserve to be supported by the Senate. I commend the bill to the Senate.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Another day, another broken promise from the Abbott government. The Prime Minister, Mr Abbott, promised Australians before the election that Work Choices was dead, buried and cremated, although not necessarily in that order. He promised the Australian people that amendments to the Fair Work Act would not go any further than the government's pre-election promises. And he promised that the government would implement specific recommendations from the 2012 Fair Work Act Review. This bill, the Fair Work Amendment Bill 2014, breaks all three of those promises. The problem with the government, with the Liberal Party and their coalition colleagues, is that they just cannot help themselves. The race to the bottom on workplace relations is in their blood. It is part of their DNA. It is who they are and who they will always be: strident opponents of workers rights.

The government, before the election, promised to return to the sensible centre on workplace relations, but this bill is a lurch to the right. The sensible centre was already established with the Fair Work Act. If those opposite wish to claim, in opposing this bill, that Labor is beholden to the union movement, they would do well to remember that neither unions nor business were entirely happy with the concessions that were made in drafting the Fair Work Act. Rather, what the government are showing by bringing forward this bill is that they are beholden to the ideologues who favour the deregulation of workplace relations in Australia. They are beholden to their mates in big business, supported by their cheer squads in the Murdoch media and the Institute of Public Affairs.

There are a number of areas in this bill in which the government are going beyond their pre-election promises, but the three I wish to focus on in my contribution tonight are individual flexibility agreements, greenfield agreements and right of entry. Let us begin with individual flexibility arrangements. Labor first introduced the IFA framework in 2009, and we introduced IFAs because we agree that flexible work practices can deliver benefits to both employees and employers. However, we did not intend IFAs to be a tool for employers to impose on unsuspecting employees as a means of ripping away conditions such as penalty rates. That is why we put in place safeguards to ensure that low-paid and vulnerable workers were protected. IFAs swap a fairly insignificant monetary benefit for a non-financial benefit. These arrangements are now in place across the majority of enterprise agreements in Australia, and the system is fair and equitable for both parties.

The government wants to establish the model flexibility term as a minimum for all enterprise agreements, but data cited by the Fair Work expert panel already demonstrates that the majority of enterprise agreements provide as much flexibility as, if not more flexibility than, is provided by the model flexibility term. The Fair Work Act Review expert panel recommended that IFAs allow for a non-monetary benefit to be conferred in exchange for a monetary benefit. In doing so, they said the value of the monetary benefit forgone must be 'relatively insignificant', and the value of the non-monetary benefit must be 'proportionate'. However, neither of these terms are included in this bill.

Labor believes it is extremely unfair to allow workers to be coerced into trading away significant amounts of take-home pay in exchange for non-monetary benefits. This provision would make low-paid workers particularly vulnerable, particularly when the arrangements are proposed by employers and the employee may not fully understand the value of what they are trading away and what they are receiving. I would like to ask those opposite: are we going to see agreements like those we saw under Work Choices with Spotlight, where workers ended up trading away their penalty rates, incentive based payments, overtime rates, annual leave loading and holiday pay for a pay increase of a paltry 2c per hour? I worry that this amendment opens the door to employers to strip away entitlements such as penalty rates from low-skilled, low-paid, vulnerable workers in exchange for token non-monetary benefits. Unless the government is going to implement the expert panel's recommendation in full, there is no way that Labor can accept this amendment.

It is interesting to note that the government, in picking and choosing the expert panel recommendations they have adopted, have omitted an important safeguard for employees. There is nothing proposed in this bill to implement the recommendation that the Fair Work Ombudsman be notified of the details of any IFA made, and the panel itself said that this would enable the Fair Work Ombudsman to investigate whether these arrangements were being abused by an employer or a group of employers.

The government has also included a requirement for employees to provide their employers with a 'genuine needs' statement, which is intended to capture an employee's state of mind at the time the IFA was agreed to. The government is passing this off as an employee safeguard, whereas it actually provides employers with a deferred defence to any future claim that they contravened a flexibility term in agreeing to an IFA. While a defence to an alleged contravention of a flexibility term was recommended by the expert panel, we on this side of the chamber would contend that the amendment is not in the spirit of the recommendation, as it is heavily weighted towards employers.

The government's proposed amendments to greenfield agreements give employers an absolute advantage when it comes to negotiating an enterprise agreement. Employers will gain absolute control over which unions they choose to negotiate with. After an employer agrees to bargain with an employee organisation, the employer at any time could issue a notice to commence a three-month notified negotiation period. During this period, an employer can basically walk away from the negotiation table and simply wait for those three months to expire, after which time the employer, and only the employer, can take the proposed agreement to the Fair Work Commission for assessment and approval. In no-one's language is this a genuine negotiation between employers and employees. This is a framework for allowing employers to negotiate with themselves.

Finally, I come to the right-of-entry provisions. Labor sought to establish right-of-entry provisions which are not weighted too heavily in favour of unions or employers, but in this bill the provisions are weighted heavily in favour of employers. The government has included a provision which requires the Fair Work Commission, when resolving disputes about the frequency of visits, to consider the combined impact on the employers' operations. This is clearly intended to exclude all unions from a site when only one union has been found to have entered too frequently. It punishes all unions for the actions of one.

The government claim that they are adopting a recommendation of the expert panel to provide Fair Work Australia with greater power to resolve disputes about the frequency of visits, but they are actually going well beyond that. Labor also has concerns about the invitation certificate process the government are proposing. The government suggest that, if an employee would like their union to come to their workplace and they wish to remain anonymous, the union must apply to the Fair Work Commission to obtain an invitation certificate. In a small business especially, this risks exposing employees who have requested a union visit to a small business. Even though the request can be made anonymously, it would not be too hard, in a business with just a handful of employees, to find out who made the request.

Also on the issue of right of entry, I will make some comment on the government's proposal to remove provisions which help facilitate union visits to work sites. The government are claiming that employers have to pay for the cost of 'union boss joyrides to remote work sites'. What they will not tell you is that employers are only required to facilitate access when their premises are not readily accessible by transport other than that provided by the employer, or the nature of the premises means that the union official has to stay overnight yet the only accommodation that is reasonably available is that provided by the employer. Employers are not required to pay such expenses unless they choose to. Removing this provision will make it physically impossible for union representatives to visit certain workplaces. It will create two classes of workers: those who can be visited at work by a union representative, and those who cannot. As someone who used to be involved in training programs for a union on workplace health and safety, I can attest to how important I consider workplace health and safety but also to how vital right of entry provisions are to overseeing health and safety in workplaces where it is not being properly adhered to.

As I said before, these changes represent a broken promise on workplace relations. They were not announced by the government before the election, and they are not, as the government would have you believe, implementing the recommendations of the Fair Work Review. So why are the government breaking their election promises on workplace relations? Why are they seeking once again to undermine the rights and conditions of workers in a race to the bottom on labour standards? Why do they insist on continuing this ideological crusade, which the Australian people so comprehensively rejected in 2007?

When I spoke earlier this year on the government's draconian job seeker compliance legislation, I explained that they were looking for a scapegoat for their failure to create jobs. When they introduced that bill, their scapegoat was job seekers, but they have found a number of other targets, including our workplace relations system. The government made the very modest promise to create one million jobs over five years, a promise which I think they have gone very quiet on lately. But, after a year and a half of the Abbott government, we have 80,000 more Australians in the unemployment queues than when Labor left office.

By contrast, Labor created almost a million jobs during our six years in government following the largest economic downturn since the Great Depression. We left office with unemployment at 5.8 percent. It is now up to 6.3 per cent. The last time it was at that level was when Mr Abbott was the minister for employment. Labor grew Australia's economy from the fifteenth to the twelfth largest in the world, and it was Labor that achieved a AAA credit rating from all three ratings agencies, something that was never, never achieved under the Howard government. Despite the rhetoric from the doomsayers opposite, Labor had a strong economic record even with the challenges of the global financial crisis.

But, under the Abbott government, business confidence and consumer confidence are down, and the government's budget strategy is falling to pieces. I would suggest to any of the Tasmanian senators from the other side that, if they want to see very quickly some examples of the loss of business, they should come to Kingston, south of Hobart, where half the shops have now closed in the past 12 to 18 months and people have just walked away from businesses. Australia's per capita gross domestic product has fallen from the eighth largest in the world to the fourteenth.

So it is no wonder that the government are looking around to find scapegoats—anyone they can blame for their own failure to create jobs and economic growth in Australia. They blame the unions and call an expensive and wasteful royal commission, trying to make out against all evidence that corruption is widespread within the union movement. They blame government spending, yet the Abbott government doubled the deficit after coming to office. They blame a price on carbon, even though an open letter signed by Australia's leading economists says that a price and limit on carbon pollution is the most economically efficient way to reduce emissions. I am still somewhat surprised carbon pricing was rejected by the Liberals when market based solutions are part of their core ideology. They blame job seekers, portraying them as bludgers who are cheating the system and not trying hard enough to find a job. They ignore the fact that job seekers need proper assistance and training to find employment, not just more penalties. And they blame people on the disability support pension, but once again their approach is all stick and no carrot. With the release of the Intergenerational report, the most heavily politicised IGR in history, they seek to blame older Australians, claiming our pension and health care systems are unsustainable while all the evidence is to the contrary. With this bill, they are blaming Australia's workplace relations system, ignoring the fact that labour productivity actually went up, not down, with the introduction of the Fair Work Act.

If the government want to know the real reason why business confidence has stalled—if they want to know the reason why they have been such a failure on job creation—they do not need to look to unions. They do not need to look to the unemployed, people with disability or seniors. They do not need to look to Australia's response to climate change. They need to look in a mirror.

After all, this is the government which Morgan Stanley said was damaging confidence in the Australian economy through its 'alarmist budget narrative'. I will just repeat that: through its 'alarmist budget narrative'. This is the government which has made every effort to avoid having infrastructure programs independently assessed by Infrastructure Australia to find out what economic benefit they would actually deliver to Australia. In fact, it has failed to implement its pre-election promise to conduct an independent cost-benefit analysis for projects valued at over $100 million. And the same government has been running around the country, announcing billions of dollars of Labor infrastructure projects and trying to claim them as its own. This is the government which tried to play chicken with Australia's auto industry and lost, resulting in the loss of tens of thousands of jobs in automobile and parts manufacturing.

This is also the government which is going to give Australia a second-rate national broadband network consisting of outdated HFC technology and a 100-year-old copper network. This will cripple our economic opportunity in ICT and the businesses which rely on it, while other countries move ahead in leaps and bounds with their optic fibre rollouts. Australia has already dropped to the 44th lowest in the world in average peak broadband connection speeds. It is a shame.

And yet this is the government which is ripping money out of higher education and wants to make students pay thousands more for university degrees. This is the government which rejects science, and was until recently the first government since 1931 not to have a science minister. They have defunded the Climate Change Authority and gutted the CSIRO, sacking one in every five of its scientists. The CSIRO is the organisation which recently netted the government $430 million in royalties from the invention of wi-fi, a technology that is now used worldwide in the daily lives of millions. And this is the government which failed to allow Australian companies the opportunity to tender for our submarine fleet and build our submarines in Australia by Australian workers.

The fact is this government does not understand that the key to economic success is economic productivity. They failed miserably to understand that the key drivers of productivity are education and training, innovation and infrastructure. Despite what this government would have us believe, there is not a significant problem with our workplace relations system. You just need to look at Australia's labour productivity as evidence for that. When was the highest growth in labour productivity in the past ten years? It certainly was not under Work Choices. No, it was in 2012, under the Fair Work Act, and under the Fair Work Act industrial disputes are down. There was a quarterly average of 13.5 days lost to industrial disputation under the Howard government. Under the previous Labor government—guess what—it was only 4.6 days.

And the government's claim that Australia faces a wages explosion is completely bogus. The latest increase in the wage price index was 2.6 per cent, below inflation. In fact, the real wages breakout was that in the pay of top executives. Until Labor's reforms to statutory executive pay, the salary of top CEOs was out of control, growing 130 per cent between 2001 and 2010. By contrast, inflation had grown 28.6 percent and average weekly earnings by 52 percent.

While Mr Abbott has such a tenuous grip on his leadership, even when he is scraping off the barnacles of his unfair GP tax and unaffordable paid parental leave scheme the urge to reintroduce elements of Work Choices is irresistible to him. This Liberal government under any leader will always be compelled by their Pavlovian instinct to cut the wages and entitlements of Australian workers. They simply cannot help themselves. But the truth is that Work Choices is far from being 'dead, buried and cremated' as the Prime Minister claimed before the last election. It is merely resting.

James McGrath (Queensland, Liberal National Party) Share this | Link to this | Hansard source

It gives me great pleasure to stand up here tonight to talk to the Fair Work Amendment Bill 2014 and support this very important piece of government legislation, particularly as this bill, like many of the actions that this government is undertaking, delivers on key aspects of our election policy, in particular in relation to industrial relations reform. This particular bill does not go any further than what we took to the people at the last federal election, back in 2013. Indeed, on union workplace access, individual flexibility arrangements and the removal of the ability to strike first and talk later, we are actually delivering on specific policy promises made by the Labor Party prior to the 2007 election but which Labor deliberately broke. So we are delivering on Labor's policies before 2007 and our policies before 2013, which is a fun fact for people at home.

Through our Fair Work Amendment Bill 2014 we are giving effect to a number of commitments in our policy and further restoring balance to the system. We will do this by improving the process for the negotiation of greenfields agreements to ensure that unions can no longer frustrate bargaining for these agreements through unsustainable claims and delays which can threaten investment and delay the commencement of major new projects that are crucial to our prosperity. We are going to restore union workplace access rules reflecting those in place prior to Labor's unbalanced amendments in dealing with excessive right of entry visits by union officials. We will improve workplace productivity and flexibility by enhancing the scope for employees to make individual flexibility arrangements that meet their genuine needs as determined by those employees. We are closing the strike first, talk later loophole in the good faith bargaining rules which Labor refused to address and will also maintain the value of unclaimed wages recovered for workers by the Commonwealth. The bill also enacts a number of recommendations from the Fair Work Act review panel in its 2012 report, which was commissioned by the now Leader of the Opposition, Mr Shorten.

The Fair Work Amendment Bill 2014 will address the current imbalance in union workplace access rules. Our changes will fairly and sensibly balance the right of employees to be represented in the workplace if they wish to be with the right of employers to go about their business without unnecessary disruption. The government and the coalition see right of entry as a specific statutory privilege to which conditions ought to apply. Regrettably, some union bosses do not see it this way.

In 2007 the Labor Party promised on multiple occasions that there would be no changes to the union right of entry laws. Indeed, in a press conference on 28 August 2007, then Deputy Leader of the Opposition Julia Gillard said:

We will make sure that current right of entry provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

Like many of Ms Gillard's promises, this promise was not kept, and unions were given much easier access to workplaces under Fair Work Act provisions which were then exploited by union bosses. This has meant many businesses across Australia face excessive workplace visits from unions even when their employees are not union members. And we should remember that only 13 per cent of the private sector workforce are union members. Eighty-seven per cent of the private sector workforce in Australia are not members of any union and actually have no desire to be a member of any union, if you look at the rate of union membership and how it has decreased over the recent decades.

The problem has been exacerbated in some workplaces by unions competing, which is nice that they believe in the market sometimes, to represent employees at the workplace. The problem was actually highlighted by the former government's Fair Work review panel, which noted that the Pluto LNG project received over 200 right of entry visits in only three months. BHP's Worsley alumina plant faced 676 right of entry visits in a single year. Our changes will reduce the capacity of unions to deliberately harass and disrupt businesses in this way.

A recent case featuring the ever-charming CFMEU president Joe McDonald has underlined the urgent need for these reforms. In the recent case where Mr McDonald and the CFMEU were fined $193,600, Mr McDonald ignored specific requests to leave a site owned by Citic Pacific's Sino iron ore project in Western Australia. When asked to leave the site because he did not have a right of entry permit, Mr McDonald replied, 'I haven't had one for seven years and that has not'—and he used a really rude word—'stopped me'. Mr McDonald's attitude reflects the very regrettable, dark underbelly of the union movement that should have no place in modern and fair workplaces.

To be clear, these amendments will enact Labor's publicly stated promise prior to the 2007 election, a promise that was not honoured. Given that the Labor Party in opposition, with the strong support of the union movement, supported this 2007 policy platform, we expect that these amendments will not be contentious. Most union officials will find these changes are not impacting their sensible approach to their right of entry activities. Currently, right of entry for discussion purposes can occur when the relevant union is entitled to represent the industrial interests of the employees at the workplace. This means unions can enter and hold discussions even if they have no actual members at that workplace and no-one has sought their presence.

The bill will amend the provisions so that the ability for unions to enter a workplace is either tied to a union's recognised representative role at the workplace or employees at the workplace have requested the union's presence. A union will only be entitled to enter a workplace for discussion purposes if (1) they are covered by an enterprise agreement or (2) they have been invited by a member or employee they are entitled to represent. If the employee who would like the union to come to their workplace wishes to remain anonymous, a union will be able to apply to the Fair Work Commission for an invitation certificate.

The Fair Work Commission must issue a certificate if it is satisfied that a worker who performs work on the premises and whom the union is entitled to represent has invited the union to the workplace to hold discussions. The certificate will not identify the employee who has made the request. This will restore the balance in the right of entry regime, so that is it similar to prior to the commencement of the Fair Work Act, consistent with the bipartisan consensus at the time of the 2007 election in relation to this issue.

The bill will also provide an effective mechanism for the Fair Work Commission to deal with disputes about excessive right of entry visits for discussion purposes. The previous Labor government's amendments to the Fair Work Act in this area were drafted in a way that renders them largely ineffective and only able to be used in extreme circumstances, where there has been an 'unreasonable diversion of the occupier's critical resources'. These amendments will remove this restriction to ensure the commission has the power to properly deal with excessive right of entry visits—for example, by suspending, revoking or imposing conditions on an entry permit. Additionally, the amendments provide that the Fair Work Commission can take into account the combined impact of visits by all unions to the workplace, reflecting that in some circumstances an employer will be subject to visits by multiple unions.

The bill will also repeal the previous government's amendments made in 2013 that expanded union right of entry rights even further by allowing for uninvited lunch-room invasions and requiring employers to pay for the cost of union-boss joyrides to remote worksites. Those amendments gave unions the right to insist on addressing workers in their lunch room, even when the workers have not requested their presence and are not union members. This is unfair to the 87 per cent of private sector workers, who are not union members and for all workers who just want to eat their lunch in peace without being hassled by union officials. This bill will restore the sensible arrangements that were previously in place, whereby union officials must comply with a reasonable request by the employer to hold discussions in a particular room. Employers will continue to be prevented from nominating locations with the intention of intimidating, discouraging or hindering employees from participating in discussions.

The former Labor government also introduced obligations on employers at remote worksites to provide union officials with transport and accommodation to enable them to access those sites. We will repeal this costly and onerous piece of regulation and, instead, reinstate the previous approach where unions and employers can reach their own arrangements in those circumstances.

The bill will remove the effective union veto power over greenfields agreements, which have enabled the unions to frustrate the making of these agreements by seeking exorbitant wages and conditions or refusing to agree at all. As the former government's Fair Work review noted, in somewhat understated language, these practices 'potentially threaten future investment in major projects in Australia'. They have already delayed major resources projects worth billions of dollars This is bad for jobs and bad for the economy. This bill will extend good faith bargaining rules to the negotiation of greenfields agreements to improve standards of bargaining conduct. This will mean that employers and unions will be required to, for example, attend and participate in meetings with each other and consider and respond to proposals in a timely manner.

To ensure that greenfields agreements can be made in a timely manner, the bill will establish a new, optional three-month negotiation time frame. The three-month time frame will apply where appropriate notice is provided by an employer to the relevant union or unions. If agreement cannot be reached in this time frame, the employer will be able to take its proposed agreement to the Fair Work Commission for approval. The agreement will have to satisfy the existing approval requirements under the Fair Work Act, including the better-off-overall test. The agreement will also have to satisfy a new requirement that it provides for pay and conditions that are consistent with the prevailing standards within the relevant industry for equivalent work. Consistent with the existing framework, the Fair Work Commission must also be satisfied that the union or unions to be covered by the agreement are able to represent the majority of future employees.

The amendments to the greenfields provisions will help to unlock new investment and prevent needless delays to new projects. This will provide confidence and certainty to investors and ensure that Australia and Australians benefit from the prosperity generated by these new projects. These amendments will also send a strong message to overseas investors that Australia is open for business and that projects can get underway quickly.

The bill will remove the 'strike first, talk later' loophole under the Fair Work Act, consistent with the promises of the Labor Party prior to the 2007 election and the recommendation of the Fair Work Review Panel. In his speech to the National Press Club in April 2007, the then Labor leader, Mr Kevin Rudd, said:

... industrial disputes are serious. They hurt workers, they hurt businesses, they can hurt families and communities, and they certainly hurt the economy … They—

employees—

will not be able to strike unless there has been genuine good faith bargaining.

This is not the case under the Fair Work Act, where employees are allowed to strike before bargaining has even commenced. The bill will amend the Fair Work Act to provide that protected industrial action can only be taken if bargaining for a proposed agreement has commenced. This amendment will mean that industrial action cannot be the first step in the bargaining process, restoring a balanced and harmonious approach to enterprise bargaining. The coalition will fix this loophole. In doing so, Labor's 2007 promise will finally be implemented.

The bill also introduces amendments to provide clarity and certainty for employees in the use of individual flexibility arrangements, or IFAs. IFAs are an important tool introduced by Labor. They are intended to enable workers and their employers to mutually agree on conditions that suit their needs while ensuring that employees are better off overall compared to their underpinning employment instrument. IFAs ought to be an important option to enable employees to, for instance, manage their childcare or other caring arrangements, to spend time with family or for other commitments. They are specific to the individual and not designed as a management tool for a business.

The amendments about IFAs in this bill are based on the Fair Work Review Panel recommendations. They also include further new safeguards to ensure that employees are better off. To be clear, the current IFA framework in the Fair Work Act will stay—with additional protections put in place. This means that an employer cannot force an employee to sign an IFA or make it a condition of employment; the employee must be better off overall than they would have been under the applicable modern award or enterprise agreement; and a worker must provide a statement to the employer saying that the IFA meets their genuine needs and that they are better off overall.

Under the current system, unions can restrict the scope of flexibility terms under enterprise agreements through the bargaining process to only cover a single matter, for instance the taking of leave. This means that workers may be denied the chance to have IFAs on other matters, even if they and their employer want to agree to more suitable arrangements. The amendments will deliver on promises made by Labor in 2007 and provide that IFAs may be made in relation to all of the matters currently prescribed in the model flexibility term to the extent that those matters are covered in the agreement. This will ensure that workers have access to fair flexibility without a veto by union bosses.

The bill also implements the Fair Work Review Panel recommendation that employers should, in limited circumstances, have a legal defence if they enter into an IFA in good faith, believing it meets all the requirements of the legislation, when it turns out later that it does not. The defence will only apply where the employer believed on reasonable grounds that all statutory requirements had been met in relation to the IFA. The bill will also strengthen protections for employees by requiring a statement setting out that the arrangement meets their genuine needs and results in them being better off overall. This will make the position absolutely clear: employees will only make IFAs that provide for non-monetary benefits when the employees themselves make a clear statement in writing why they are better off overall.

Two further amendments recommended by the Fair Work Review Panel will be made to provide clarity and certainty to both employers and employees. First, the unilateral termination period for IFAs made under enterprise agreements will be extended from 28 days to 13 weeks, consistent with the position for awards. In addition, the 13-week unilateral termination period for both modern awards and enterprise agreements will be placed in the legislation. The second amendment will confirm the existing position that the better-off-overall test for IFAs can be satisfied by exchanging monetary benefits for benefits that are not monetary. This is already the case under the legislation introduced by the Labor Party that operated while the Leader of the Opposition was the workplace relations minister. This position has been confirmed by the independent Fair Work Ombudsman. The amendment, combined with the government's new requirement for a statement in writing from the employee, will provide greater protection and certainty for all parties. All other rules relating to an IFA will be retained, including that they cannot be made a condition of employment, must leave the employee better off overall and must be genuinely agreed to. Anyone who opposes these amendments needs to explain to Australian workers why they should not have the opportunity to be better off overall if the arrangement genuinely meets their own needs—as assessed by themselves.

This bill will also implement a number of other common-sense recommendations that were made by the now Leader of the Opposition's Fair Work Review Panel in 2012 but were not implemented by the previous government. The bill will clarify the interaction between leave and workers compensation by removing an exception that allows employees in a few jurisdictions to accrue or take leave while absent from work receiving workers compensation. This will remove the inconsistency and confusion that currently exist for employees and employers, and ensure that employees on workers compensation across the country are treated consistently.

In line with the fair work review panel's recommendation, the bill will clarify the circumstances where annual leave loading is payable when a person leaves their job. The change will restore the longstanding position that employees are only entitled to annual leave loading when their employment ends if it is expressly provided for in their award or workplace agreement. This will address the confusion that currently exists as a result of the legislation and numerous awards adopting different positions. It will still allow for annual leave loading to be paid, including after employment has ended, if it is in the employee's modern award or enterprise bargaining agreement.

In conclusion, I reiterate that this bill does deliver on key aspects of our election policy and does not go any further. Indeed, the bill actually delivers on key aspects of the promises that the Labor Party took to the election in 2007. I encourage all members, especially those opposite, to consider the consistency of their position in 2007 with the position that they are taking now.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak on the Fair Work Amendment Bill 2014. Labor opposes this bill in its entirety. It is unfair, it is divisive and it will do nothing to boost workplace productivity or relations between employers and employees. The bill would open the door for basic award conditions, like penalty rates, to be traded away. It would also make it harder for employees to enact their right to representation.

Prime Minister Abbott has consistently promised that Work Choices is dead, but of course—as Australians have learnt the hard way—the Prime Minister and the Liberals cannot be trusted to keep their promises. They cannot be trusted with health, they cannot be trusted with education, they cannot be trusted with our national broadcaster, they cannot be trusted not to bring in new taxes, they cannot be trusted with community services, they cannot be trusted with pensions, they cannot be trusted with the welfare safety net and they most certainly cannot be trusted to protect Australian workers.

If Work Choices is dead and buried, as Prime Minister Tony Abbott has said, we clearly have a case of zombie policy rising up to wreak havoc on the working people of Australia. The truth is that this bill is a blatant continuation of the Liberals' ongoing and consistent agenda of attacking employment conditions and eroding industrial protections in this country. Though this bill, and on many other fronts, the government is clearly trying to take up where Work Choices left off.

At a time when Australia's wage growth has hit a wall and Australian workers are struggling to ensure that their pay keeps pace with the cost of living, this government is trying to hit them even harder. And yet, despite the indisputable facts, those opposite have dragged out the same mistruths and scare tactics to try to convince the community that Australians need to be paid less. Only last year, Senator Abetz was talking about wage explosions that, if left unchecked, would push thousands of Australians out of work. This is an absolutely outrageous claim that has no basis in reality, as Mr Abetz would undoubtedly be aware. The hubris of a man who can tell the Australian people a fib in his attempt to lower their take-home pay and their standard of living is shameful. That he would try to convince the Australian people that this is actually in their best interests is truly breathtaking.

Back in the real world, economists—and anyone with more than a passing understanding of current economic matters—know that wages growth is the lowest that it has ever been. The Australian Bureau of Statistics told us in December that, at 2.6 per cent, annual wage growth had barely outperformed inflation in the year to 2014. But remember that this is an average, and in many industries employees are finding that their salary no longer pays for the same things it did just a year ago. A recent Business Day survey found that many experts and economists do not expect things to get much better in 2015. CBA economist Michael Workman expects inflation of 2.7 per cent, with wage growth of just 2.2 per cent; Professor Jakob Madsen of Monash University expects inflation of 2.5 per cent and wage growth of 2.2 per cent; and Saul Eslake from Bank of America Merrill Lynch, Shane Oliver from AMP and Tom Skladzien of the Australian Manufacturing Workers Union expect zero real wage growth.

Despite this, the Abbott government persists in launching another attack on the conditions of Australian workers. Despite stalled wages and the increasing difficulty that working Australians are having making ends meet, this government wants to put more power in the hands of employers. Clearly this government is in a race to the bottom on standards in industrial relations. Rather than trying to build a balanced and stable industrial relations system, this government has launched yet another attack on workers. The provisions in this bill are fundamentally unfair—a feature which is almost becoming a hallmark of legislation developed by the Abbott government. This is a government that consistently and continuously hits out at those who have the least, while handing out favours to those who have the most. It has back-flipped on its promise to install laws to address tax avoidance measures employed by multinational companies and at the same time it is commissioning an industrial relations review which will include penalty rates and the minimum wage.

This government consistently and repeatedly hits those who are least able to take the blow, those who are least able to speak out on their own behalf and those who already have the toughest lots in Australian life. Those with wealth are spared the burden of budget cuts. Those with social and political power are privileged in legislation. The reality is that the people who are likely to be impacted the most by these changes have the least capacity to argue their case and the smallest amount of leverage to achieve outcomes. Women, particularly, will be worse off, as they are more likely to be on a minimum wage than men. There are more women in industries like hospitality, community work, child care and cleaning which will be exposed to the provisions in this bill. Similarly, low-paid workers, workers with limited access to formal education and other vulnerable Australians would be left unrepresented or at the mercy of unscrupulous employers.

The government has told us that this bill is merely the delivery of an election promise to implement the recommendations of Labor's 2012 Fair Work Act review, but the truth is that the bill before us today goes much, much further. In fact, the provisions of this bill serve to undermine fundamental work and representation rights that are integral to Australia's industrial relations system. The government has misled the Australian people by trying to represent the antiworker provisions as being just the fulfilment of the expert panel's recommendations. This simply is not true. This bill clearly oversteps any mandate the government try to pretend they have. And Australian workers will be the ones to pay the price.

One of the biggest concerns is the government's plans for individual flexibility arrangements, or IFAs. It was Labor that introduced IFAs, in 2009. They were designed to create a framework that would allow for genuine flexibility—the flexibility for parents to make arrangements with their employer that would allow them to pick up their children from school or take time to care for ageing parents, for example. But Labor's individual flexibility agreements came with strong safeguards to protect workers. Firstly, there was a requirement for genuine agreement between workers and their employers on the terms of the agreement. Secondly, and very importantly, the agreement needed to satisfy the 'better-off overall' test. That is to say, the employee must be better-off overall as a result of the provisions contained in the agreement. This is an important safeguard that protects conditions from being traded away by unscrupulous employers. But the legislation before us today will weaken the 'better-off overall' test. In doing so, it abandons the safeguards when it comes to what can be traded away under an individual flexibility agreement.

This bill also includes provisions to allow non-monetary payments to be taken into account when considering whether an employee actually is better-off. Remember, the government are making these changes on the basis that they are merely fulfilling the recommendations of the expert panel. But the expert panel was very explicit on the matter of non-monetary payments, saying that, if a non-monetary benefit is being traded for a monetary benefit, the value of the monetary benefit forgone must be relatively insignificant and the value of the non-money benefit is proportionate. They are three simple words—relatively, insignificant and proportionate—but three simple words with big implications for workers' employment conditions when they are removed.

Equally, we could see employees left with little choice but to forgo their rights to penalty rates for working antisocial hours or they may be forced to drastically alter their working hours. Clearly, this distorts the original intention of these individual flexibility agreements beyond recognition. And clearly it means that Senator Abetz was wrong when he said of the bill that it:

… implements our publically stated policy – nothing more, nothing less.

It is here that we start to see the government's real intent. It is not about fulfilling the will of the expert panel. It is not about the government keeping their word to Australian voters—because, goodness knows, they have paid no heed to that in so many other areas. What it is about is removing protections from Australian workers. Government members have said that these changes are needed to bring flexibility to the system. Unfortunately for the government, and for the strength of their argument, it seems business does not agree. In fact, less than one per cent of employers believe that IFAs are too inflexible, according to a survey undertaken by Fair Work Australia in 2011. So not only are the government attacking Australian workers, but they are doing it to address a problem that does not even exist. It is clear from this that the government are not trying to make for a better workplace system but rather are fabricating problems in order to fulfil their fundamental agenda of attacking workers.

But this bill goes further, by requiring employees to sign a 'genuine needs statement' agreeing that they will be better-off as a result of the agreement. While this sounds like a reassuring measure, in practice it will offer employers a ready-made defence against any future claims that they may have contravened a flexibility term in the agreement. In practice, it would be a very brave employee who would refuse to sign these agreements if they had any fears that their job might be the casualty of their refusal. This is particularly relevant in industries or areas with high unemployment or in entry level positions where employees have much less bargaining power. As Associate Professor Rae Cooper at the University of Sydney's Business School put it very well, in The Age recently:

Frankly, how will a mother seeking flexibility to fit with care arrangements and who is desperate for her job manage to genuinely negotiate on an individual basis?

So, far from being an employee protection, it is clear this provision could offer an alibi to unscrupulous employers who wish to take advantage of unsuspecting employees.

Another big problem with this bill is that it attempts to diminish the ways that unions can communicate with their members, through changes to the right-of-entry provisions. We on this side of the chamber believe it is the right of all employees to decide whether they join a union or not. We also believe in balance—that right-of-entry provisions should not be tilted towards either unions or employers.

However, this government has dispensed with any notions of balance in this bill. Of course, it will come as no surprise that the Abbott government's changes in this area are heavily weighted to employers. And, again, we can see that what the government promised to do is very different to what they are actually doing. Before the election, the coalition said they would adopt recommendation 35 of the expert panel, which gives greater power to Fair Work Australia to resolve workplace disputes about the frequency of visits. However, the government's inclusion of a provision that requires the Fair Work Commission to consider the 'combined impact on the employer's operations' is clearly intended to exclude all unions from a site if only one union has been found to have entered too frequently. This bill would make it harder, or even impossible, for workers to have discussions with their union representatives in their own time at work. It will also enable employers to nominate unreasonable places for workers to meet their union representatives. This is a case of 'punish one, punish all.' This bill proposed go far beyond the expert panel's recommendations and is clearly intended to exclude unions and restrict people's capacity to act on their right to union representation. Clearly, the government is trying to restrict access for unions to worksites.

Another very concerning aspect of this bill is the amendments to greenfield agreements. These provisions pave the way for certain groups of employers in industries such as mining and construction to essentially negotiate with themselves. The amendments allow for the ludicrous situation where one party—unions—would simply be removed from the negotiating table if difficulties arise in the course of negotiations. Employers are given absolute advantage in negotiating by allowing them to choose which unions they want to negotiate with. After the negotiations begin, the employer can then at any time call a notified negotiation period. They then simply have to sit back and wait. Once it starts, this countdown clock does not stop. An employer could essentially walk away from the negotiating table and wait for the three months of negotiations to expire.

If they cannot reach agreement with the union within three months, they are then entitled to write their own workplace agreement with or without the support of the unions and their employees. At the end of the three months, the employer—and only the employer—could take a proposed agreement to the Fair Work Commission for assessment and approval. Essentially, the employer will negotiate with themselves and unsurprisingly they will find that they are in furious agreement with themselves. This is absurdity of the highest order and would not be out of place in a Monty Python sketch. It is no way to bring fairness into Australia's industrial relation system. This provision will allow employers to trample all over their workers' rights with absolutely no checks and balances to limit the excesses of some greedy employers. This is just another reason that Labor opposes this bill.

The government has said this bill is necessary, but the truth is that Australia has one of the strongest, fairest and most successful industrial relations systems in the world thanks to the reforms of the previous Labor government. When it was introduced, we were told that the Fair Work Act would undermine productivity, cause untold industrial disputes and pummel productivity outcomes. We were told by the Business Council in The Australian that the Fair Work Act had:

… unleashed an adversarial culture which has resulted in a rising number of disputes and unreasonable claims.

So let us look at the outcomes. What has actually happened under the Fair Work Act? Let us look at industrial disputes. Those opposite told us these would spiral because unions would be interfering with areas that were none of their business. The facts tell a very different story. According to the Australian Bureau of Statistics, 2013 was the second lowest year for industrial disputes since records began. So much for claims it would lead to industrial chaos. Compared to the Howard era, industrial disputes are at a remarkably low level. Why? Because Labor created a system that was fair to both parties. Clearly, this is part of the government's ongoing agenda to attack unions and drive down wages.

Earlier this month in this place, I shared a quote from Bernard Keane that I think is particularly relevant here again today. Mr Keane has captured the motivations of government members perfectly when he said:

The Fair Work Act has delivered significant labour productivity growth and moderate — at the moment, low — wage growth, with industrial disputation far below the average level of the Howard years, suggesting it's not real-world outcomes that the Coalition is concerned about in IR, but business bottom lines.

Indeed.

But really, we should not be surprised. It is in their DNA. Those opposite have a long history of relentlessly attacking the rights of Australian workers and attempting to shackle the unions that represent them. In 2004, they did not tell the Australian people their plans to introduce WorkChoices and AWAs. In 2005, they told the Australian people their pay and conditions were protected by law when they were not. In 2008, Mr Tony Abbott said WorkChoices:

… was good for wages, it was good for jobs, and it was good for workers. And let's never forget that.

Things have not got much better with this appalling government.

This government's highly ideological commission of audit recommended that the minimum wage go backwards by one per cent a year in real terms for a decade, which is a move that would entrench poverty and take the minimum wage back to its 1998 level. This government promised not to touch penalty rates and then gave the Productivity Commission open slather to look at this and many other aspects of industrial relations which we were told were off the table. This government extended a royal commission into the trade union movement for a year without the royal commissioner asking for it.

This government never was, and never will be, a friend of the workers. From the moment they gained power, they have set out on a systematic path to lower the conditions of Australian workers. I urge senators to fight back against this vindictive agenda and back millions of Australian workers by voting against this rhetoric bill, this backward bill, this bill that will not enhance workers in any shape or form. It will not add to productivity in this country.

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

That is not true, Senator Urquhart.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It is true, Senator McKenzie. There is no evidence to suggest that this bill or attacking workers will actually add to productivity improvements in a workplace. Having represented workers for over 30 years of my life, I can stand here today and say that workers with low-paid incomes are some of the most vulnerable people in our country. As a Labor representative, I am very proud to stand here alongside the rest of my colleagues and support workers. We should all vote against this legislation.

Debate interrupted.