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

I am deeply disappointed that Senator Ludwig is not here in the chamber to conclude the 2½ minutes that he had left in his time, because we all enjoyed a lesson in industrial history.

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

Filibustering!

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

Order!

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

I was not aware whether Senator Ludwig was actually talking about industrial history, because at one stage there I thought he was going to start talking about the Mudginberri meat dispute back in earlier times. The information that he gave us was honestly far better consigned to history than it was to modern understanding, because the purpose of this Fair Work Amendment Bill 2014 is of course to deliver not only on key aspects of the coalition's election policy—and let me assure you, going not one word further than the policy commitments in 2013—but indeed also on issues such as union workplace access, individual flexibility arrangements and the removal of the ability to strike first and talk later. You would not believe it, Mr Acting Deputy President, but this amendment is actually delivering on specific policy promises made by the Labor Party prior to the 2007 election which, after becoming elected and under the pressure of their union bosses, they conveniently broke and left to one side. So, we are really doing the uncompleted work of the Labor Party in 2007. These amendments will give effect to a number of commitments in our policies. They will restore balance to the system, and I will explain why that is so beneficial for employees, for the economy and, of course, for business generally.

What will they do? First of all, we will improve through this amendment the process of negotiating greenfield agreements, to open up and allow encouragement for further business development and project completion in this country. This will ensure that the unions can no longer frustrate the bargaining process for these agreements through unsustainable and unreasonable claims and delays which, as we know, not only threaten investment but delay the onset of new projects and put workers' roles, permanency and opportunities at risk.

The second thing that we will do through these amendments is restore workplace access rules which in fact reflect those put in place by Labor themselves at the time they were putting their policy position together for the 2007 election, and dealing with what we know to be—and I will explain it in greater detail—the excessive right of entry visits by union officials on work sites. As you and I know, Mr Acting Deputy President, there are no better examples of this than in our home state of Western Australia, the engine room of the Australian economy.

Thirdly, we will improve workplace productivity and flexibility by enhancing the scope for employees to make individual flexibility arrangements that meet their needs as they determine, in accordance with Labor policy which Labor themselves have now turned their backs on.

We will also close the strike-first-and-talk-later loophole in good faith bargaining, which Labor refused to address after successive leaders of their party stated openly that they would ensure that did not happen. And we will maintain the value of unclaimed wages recovered for workers by the Commonwealth. Why are all these good measures available at this time during this country's economic drive for improved growth and improved employment? Because each of them will improve business confidence. As we know, when business confidence improves, investment confidence flows and, when investment confidence flows, we know that there are increased employment opportunities and, therefore, job security. That is what we are all about. This bill enacts a number of the recommendations from the Fair Work review panel of 2012, which was commissioned by the now Leader of the Labor Party in this place, Mr Shorten, before he was rolled by his unelected union bosses.

In relation to union workplace access, the scenario we will address is the imbalance that now exists. We will recreate that balance, and we will balance the right of employees to be represented in their workplace,—get this—if they want to be, with the right of employers to go about their business activity without disruption. In 2007 the Labor Party promised, on multiple occasions, that there would be no changes to union right-of-entry laws. The then Deputy Leader of the Opposition, Ms Gillard, made this statement:

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.

It has now been reversed. What do we now have? A scenario in which unions can actually walk into workplaces, even if there are no members of their union amongst employees, and even if their presence has not been sought by workers. I have a couple of examples of abuse that you and I are well aware of. They were highlighted, incidentally, by the review panel commissioned by none other than Mr Shorten. There was the Pluto project by Woodside on the North West Shelf where 200 right-of-entry visits were demanded in a 90-day period. That is better than two a day on the Pluto project. A second example was when the BHP Billiton Worsley Alumina plant faced 676 right-of-entry visits by unions, uninvited, in a one-year period, which was better than one a day.

I do not need to read out the quotations of Mr Joe McDonald because the terms he used are unparliamentary and, of course, you will have no trouble understanding what they were. The union, the CFMEU, of which Mr McDonald was an executive member, was fined $194,000 in the Western Australian court in relation to Citic Pacific's Sino iron ore project at Cape Lambert. He said in regard to right-of-entry permits:

I haven't had one for seven years and that hasn't—

I pause for the omitted words—

stopped me.

That is the sort of attitude that Mr McDonald and those like him have to the court system in our country.

When we speak of eligibility it is entirely reasonable that, if members of the workforce are represented by a union or there are individuals who want to have union representation, then they should be able to do so. Under those circumstances the bill will provide that a union will be only entitled to enter a workplace for discussion purposes if they are covered by an enterprise agreement, or if they have been invited by a member or an employee they are entitled to represent. That was Labor policy, and I think it is entirely reasonable. What has happened is that, of course, we have once again had a circumstance in which the union bosses, the unelected bosses, have dominated the decisions and the attitudes of their parliamentary elected representatives on the other side of this chamber.

I have referred to frequency of disputes already, which are disputes about excessive right-of-entry visits for discussion purposes. These amendments will remove the restriction to ensure that the Fair Work Commission has the power to properly deal with excessive right-of-entry visits by suspending, revoking or imposing conditions on an entry permit. In addition the amendments will provide that the Fair Work Commission can take into account the combined impact of visits by all unions to a workplace, reflecting a circumstance in which an employer is subjected to multiple union visits.

The other point which has been a subject of great contention, particularly in our state with offshore and remote mining site operations, is the whole question of expanded rights of unions to enter uninvited, and particularly the so-called lunch room invasions. Why is such a provision unfair? In the case of offshore operations there are specific requirements and training required for personnel going in helicopters to the offshore rigs. There are limited seating opportunities. There is the need to provide accommodation on a rig. More to the point, if the only place on a rig that can be provided is a lunch room, why should workers on that rig who have no interest in participating in some sort of harangue from an elected union official be subjected to that while they are having their recreation and their lunch? I make the point that 87 per cent of private sector workers in this country are not members of unions. To those of us who travel to remote locations, be they offshore or remote mine sites, the solution is obvious. Everybody gathers at the airport in advance of travelling to these locations. If indeed workers are keen to receive a visit by a union representative, the opportunity is there. The union official does not have to leave the city. They can just drive to the airport and conduct that meeting in advance of an aircraft leaving to go to a mine site or rig site. That whole question will be addressed in the amendments. We will give effect to the Labor Party's own commitments prior to the 2007 election.

The second area I wish to address is that of greenfields agreements. The best example I can give is the current dispute, which may temporarily have been resolved now, with the Gorgon project on Barrow Island offshore of the Pilbara in Western Australia.

Senator Lines interjecting—

Several of us—including Senator Lines, Senator Sterle, Mr O'Connor, Mr Marles, Western Australian Labor leader Mr McGowan and, I think, the member for Perth—only three or four weeks ago were invited by Chevron to fly up to Barrow Island to visit the Gorgon site and then go to Wheatstone to have a look at that one. Gorgon is 95 per cent completed. The first gas train—the first of three—is due to deliver gas for export by the end of this year. It is and has been a phenomenal project—$53 billion, Chevron being the main partner. Wheatstone, a lesser project—$37 billion—is about 60 to 65 per cent complete. My recollection—I may be corrected—is that at the moment there are 8,700 workers on the project on Barrow Island and about 3,500 on the other one. Since we visited—since we were given the opportunity to look at every aspect, to talk to workers, to see where they resided, to eat in the same mess and to see the work they are doing—we have had a circumstance of threatened strikes. There are three gas trains under construction at the moment at Gorgon on Barrow but there is the capacity for a fourth and a fifth. So why, in heaven's name, would anyone who might be trying to influence decisions in Houston for investment in a subsequent fourth and fifth train do that? Why would people go on strike and threaten the integrity and the completion dates of the first, followed by the second, followed by the third train? I did not hear any of my Labor colleagues, all of whom I believe appreciated and enjoyed our recent visit, publicly make the obvious point that these people were putting at risk not only the completion of that project but also the future decision by that company to continue investing. When I was at Barrow Island the other day I did not see any brick wall around the island. I did not have anybody say to me, 'I find these conditions of employment to be untenable but I am in some way padlocked to working here.' This makes the point that projects of this nature have to become the subject of greenfields agreements. At the beginning of the project, at the MOU stage when you get a company making a decision to proceed, they can sit down with the unions who represent those who will be working on the project and say, 'For the purposes and the length of this project, this is what we all agree will be the terms and conditions of employment.'

I will give another example of what I am talking about. I had a representation from one of the unions involved in the shipbuilding industry at Henderson in Western Australia. Those of us who are from WA need to remind the rest of the country that we have a very active shipbuilding industry in southern Western Australia and that Austal shipping, which is represented there, through its operations in Mobile Alabama builds 15 per cent of the tonnage of the American navy. So we are not inexpert. These people came to me to seek my support in relation to new projects for the shipyard where they worked. I said, 'This is absolutely fantastic. What projects are to be bid on?' One was a replacement for the Aurora Australis and there were others. I said, 'That's great. There's going to be tremendous competition if and when such a contract is advertised for tender. There'll be Singaporean shipyards, Malaysian yards, Chinese and Korean yards and eastern Australian yards. Can you guarantee to me that you can come forward with a confirmation that you can take to your employers to say that in going to bid on that project you will agree in a greenfields fashion to a set of industrial conditions upon which the employer can then do their figures to put in a competitive bid?'

I said, 'If you can do that, you will certainly get my support in terms of anything I can do through government, through the company itself, to encourage them to put in the bid.' They could not.

We operate in an international market and therefore I make the point very strongly that greenfields agreements are absolutely critical if we are going to attract new investment in new projects and at the same time end up with perfectly reasonable negotiated settlements between employers and employees, through their unions if necessary, in advance so that everyone knows what is going on. Unless and until we can get to that circumstance, it begs the question: do these unions actually want to see new investments for new projects, for new employment, for new growth in our country?

The greenfields agreements in these amendments will provide the opportunity to ensure that employers and unions will be required to attend and participate in meetings with each other and to consider and respond to each other's proposals in a timely manner, and it provides the circumstance in which there will be a three-month negotiating time frame after which the parties are able to go to the Fair Work Commission for approval. In an intelligent, modern economy where we have intense competition around the world for the flow of capital, for the flow of projects, surely these sorts of provisions are what we need to be fixing.

The fixing of the strike first talk later loophole simply honours the commitment of the then leader of the Labor opposition, Mr Rudd, in his speech to the National Press Club on 17 April 2007:

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

He went on to say that employees 'will not be able to strike unless there has been genuine good faith bargaining.' Of course we know that all that was thrown out by the Labor Party when they came into government, and we now do have the strike first process. It has to be reversed. There has surely in any circumstance got to be an undertaking by the parties to negotiate in good faith and then only if they have been unable to resolve the issue do they move towards the industrial action that they have the right to take. To strike first and talk later is unacceptable, and it detracts from business confidence. It detracts from the opportunity for investment by banks or by others.

The amendments concerning individual flexibility arrangements are designed to expand what the Labor Party brought in as their own policies—they were their initiatives. They are an important tool; they were introduced by Labor 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 the underpinning employment instrument. I urgently request that those on the other side honour their own commitments going into earlier elections and I hope that those on the crossbenches, including the Greens, see the benefit to employees, to their job security, and to the wider community.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Boy oh boy—the ignorance of those opposite is well and truly on display today in this debate on the Fair Work Act Amendment Bill, as is their hatred of Australian unions and workers. Their ignorance of our fair work laws and how you bargain in this country is staggering given that they are proposing a bill that will take us back to a Work Choices environment. Let me put the truth on the table about Chevron. Their enterprise agreement was up for renewal. Senator Back implied that once you sign an enterprise agreement that is it for ever and ever and that somehow the unions were being irresponsible. That agreement at Chevron was up for renegotiation. What Senator Back did not say was that on FIFO sites in Western Australia we have very high rates of suicide, and why is that? Because the shift patterns on Western Australian sites are unacceptable. At Chevron, those workers work 26 days straight—26 days of 12-hour shifts, and then they get nine days off. Because Chevron is quite a way from their home base, they will lose a day travelling there and back. That is what the workers were threatening industrial action over at Chevron—they wanted fairer shift rosters.

When I went to Chevron I raised that with the general manager and said that the shifts he was operating at Barrow Island and Wheatstone were not acceptable to the Australian community and were certainly not acceptable in the mining and resource environment. I am very pleased to say that Chevron have seen the light on that, and they will go to a two-week working cycle followed by a period of time off. It is not everything the unions wanted but it is a negotiation and they have reached a fair deal. We will no longer see 26 days of 12 hours a day in summer, when it is 44 degrees on Barrow Island, being worked. That is the bit that Senator Back failed to mention this morning—that it is a negotiated settlement. Of course in this country we accept a worker's right to strike, and I would like to ask the government if they think workers have a right to strike because obviously they think they do not. Nothing being played out at Chevron was against the fair work laws and workers were exercising their absolute right during a bargaining period to bargain for something better. Those workers were prepared to forgo a bigger wage increase to get a fair deal on rosters, to try to cut down the suicides we were seeing on the FIFO sites.

The other point that Senator Back did not talk about was the double bunking that is going on at Chevron, which is completely unacceptable. Of course, he also did not mention the tax minimisation that Chevron are involved in where millions of dollars are being held overseas and not paid properly in Australia. But that is not something that you will hear the Turnbull government talk about because they are their mates and, wherever possible, they absolutely want them to come into Australia and minimise the benefits to the Australian community at large. Quite clearly, Chevron are minimising the tax that they pay in this country and, seemingly, neither the Abbott government nor the Turnbull government was prepared to do anything about that.

You will also hear and we heard today in the debate on this Fair Work Amendment Bill, which obviously Labor opposes, government senator after government senator claim this bill simply picks up recommendations made by the review that Labor undertook under the Fair Work Act, which reported in 2012. Of course, what we know about the Turnbull government is that the devil is in the detail and it is the detail that needs to be carefully examined because that is where the Turnbull government deviates quite remarkably from the recommendations in Labor's review. Make no mistake: this is Work Choices by stealth.

Yesterday we had the NATSEM report come out and say that, for low-income workers and low-income families in Australia, the future is bleak. Make no mistake: if this Fair Work Amendment Bill gets up, it will enable a race to the bottom in terms of wages through the IFAs proposed in the legislation. I have lived and breathed it under legislation introduced by other conservative governments and that is what we will see: workers will be worse off under this legislation. No ifs, no buts—they absolutely will.

The Turnbull government's changes are squarely aimed at disadvantaging workers and their unions. This bill is stacked squarely in favour of employers. It is anti worker and it is anti union. Of course, that would be of no surprise to anyone that the Turnbull government, with their tea party ideology and agenda, are anti worker and anti union. They might have changed their leader, they might have put a bit of sugar on the top but, whether all of those ministers opposite remain ministers or go on to the backbench, they will not have an epiphany and suddenly embrace workers and unions. Their tea-party ideology will continue because that is at the core of who they are.

Whether it is destroying good jobs with good pay, whether it is the witch-hunt royal commission, headed by a royal commissioner who should be sacked, or whether it is their constant attack under parliamentary privilege on unions, the government show themselves to be anti worker and anti union.

The bill is also a showcase of yet another broken promise, a betrayal of trust to the Australian people both before the election and, indeed, again when introducing the bill. This government, the Turnbull government, promised that, when proposing amendments to the Fair Work Act, those amendments would not go any further than its pre-election promises and that it would implement specific recommendations directly from Labor's 2012 Fair Work review.

The facts of the matter are now before the Senate and the Australian public. It is absolutely clear this bill goes way beyond both the Abbott government's pre-election promise and now the Turnbull government's commitment to continue with this unfair Work Choices bill. And it goes way beyond Labor's Fair Work review. The government has clearly overstepped its election promises in a way which absolutely advantages employers, particularly in relation to individual flexibility agreements, greenfields agreements and the right-of-entry proposals.

Even on its most basic promise, to implement recommendations from the 2012 Fair Work review without change, the Turnbull government cannot be trusted. Instead, the government is putting its own flexibility flair on Fair Work recommendations, while trying to pass them off as somehow original. Make no mistake: if this bill passes the parliament, workers will be worse off and those responsible will be the anti worker, anti union, anti good jobs Turnbull government.

I want to start with individual flexibility agreements, IFAs. This bill takes them much further than the 2012 Fair Work review and, in doing that, the Turnbull government disadvantages workers and advantages employers. The 2012 review said that in relation to IFAs recommendation 9 stated that the 'better off overall test' in the Fair Work Act:

… be amended to expressly permit an IFA to confer a non-monetary benefit on an employee in exchange for a monetary benefit, provided that the value of the monetary benefit foregone—

here is the devil in the detail—

is specified in writing and is relatively insignificant, and the value of the non-monetary benefit is proportionate.

This bill before us and the Bills Digeststates that this recommendation would 'provide more protection for employees by inclusion of the qualifier'—the very qualifier that was in Labor's review—'that the monetary benefit forgone must be relatively insignificant'.

The government instead states in its explanatory memorandum in relation to an IFA that an employee may forgo penalty rates. I know that those opposite do not care too much for penalty rates and most of them want to see penalty rates disappear. But you could hardly describe a penalty rate as insignificant. In the government's explanatory memorandum it states that you can forgo penalty rates in exchange for flexible hours. That could hardly be described as insignificant. Again, the devil is in the detail.

Further, in relation to IFAs there is no protection for employees and absolute protection for employers. This is how the government proposes that an IFA should work and this is how it will be abused by employers. All the employer has to do—and this is what will happen—is write up a genuine needs statement and the employee, of course, will sign it. That is the first step complied with. If you are a low-paid aged-care worker, a low-paid cleaner or a low-paid hospitality worker, with 6.5 per cent unemployment and with record levels of youth unemployment, you will sign that genuine needs statement because you need the job

Anyone in this place who thinks that workplaces are even playing fields are just, once again, showing their ignorance. In an aged care facility, a childcare centre, a cafe, a factory or the cleaning industry, the boss holds the power, because it is implied that if you do not sign that so-called genuine needs statement then you can go find work somewhere else. And all of this is against the backdrop of the Turnbull government's record high unemployment.

Wait for it: it is the employees themselves who are not in a position to judge, but those opposite state that the genuine needs statement somehow meets some better overall test. It is all down to the employee, because the boss is standing over them, there is a queue of other workers out there waiting to take their place, and they say, 'Sign or resign.' We have seen all of this before under Work Choices. But wait, there is more: the Turnbull government go further and provide complete protection from liability for an employer from contravention of a flexible term of a modern award in relation to a particular IFA. They have lined up with the bosses and said: 'Don't worry. We'll look after you. Just trust us.' What is the test? It is just where the employer reasonably believes the requirements of the term were complied with. How easy is that? The boss says, 'I thought it was all okay. I did not realise.' That is okay, 'You can have whatever sort of IFA you want because that is the only test.' What a disgrace! That is a massive departure from what Labor's review recommended.

These IFAs will apply across all Australian workplaces as its intended they will apply to awards and enterprise agreements; they will apply to 15-year-old kids. This gives complete protection from liability for the employer. This is outrageous, particularly when it comes on the heels of the shocking exploitation of visa workers that we have seen at Baiada chicken farms, at 7-Eleven, at United Petroleum and at Australia Post—and on and on it goes. The Turnbull government have been completely inept in terms of dealing with these scams, scams which rip workers off. These IFAs will give the employer cart blanche to exploit and rip off vulnerable Australian workers. But we know in this place that the Turnbull government do not stand for good jobs and good pay. They do not. Labor stands for good jobs, good pay and fair workplaces—yes, with flexibility, of course; but at the heart of our policies is the issue of fairness. These IFAs are a complete take from Western Australia's harsh laws. Just as Work Choices took the job of the Prime Minister in a previous Liberal government, the same harsh work laws in Western Australia rolled, in the end, the Court Liberal government because Australians want a fair go. At the heart of what we stand for, as Australians, is a fair go.

Greenfields agreements are another broken promise—another sneaky deviation from the Fair Work review of 2012. A greenfields agreement is an agreement which covers a whole workplace, a new workplace. The 2012 review recommended that good faith bargaining provisions—obviously something the Turnbull government does not believe in—be applied to a greenfields agreement. Good faith bargaining provisions go to: attending and participating in meetings; disclosing relevant information in a timely manner; responding to proposals made by other bargaining representatives, in a timely manner; giving genuine consideration to proposals; refraining from unfair conduct that undermines freedom of association or collective bargaining; and recognising and bargaining with the other bargaining representatives in the agreement. Those provisions, which Labor recommended should be part of greenfields agreements, were simply tossed aside. Once again, the Turnbull government has given all of the advantage to employers. The new provisions—which, make no mistake, were not part of the 2012 review—are that these greenfields agreements can be time bound and that, after just three months, with very few checks the employer can simply apply to the Fair Work Commission to have agreements ratified. Again, this will be abused by some employers who want to put together an inferior deal, a deal below their competitors and a deal which takes away industry conditions and standards; all they have to do is wait awhile.

I have participated in enterprise bargaining hundreds of times. I can tell you that it is quite common in the first instance for an employer to rock up and put a zero wage offer on the table—zero wage increases but taking away conditions. In fact, we have seen that in the public sector with the deal on offer by the Turnbull government to Australia's hardworking public servants. Of course, it takes time. It is very easy for an employer to simply fritter away 12 weeks and then say that the union is being unreasonable. Then off they will go and they will get their deal imposed. Make no mistake: we will see a breaking down of industry conditions of employment under this kind of greenfields arrangement.

We would expect nothing else: of course, there comes a direct attack on the rights to be represented by a trade union. This bill proposes to radically change the right of a union to enter a workplace. I heard before Senator Back making this ridiculous claim that unions should go out to airports to meet with people. For goodness sake! Again, it demonstrates the ignorance of those opposite about how workplaces operate. It is the right of a union to go into a workplace. It is the right of people to belong to a trade union. What do they have to fear from that? Thousands and thousands of workplaces every day get a visit from a union official, and most of that is fine. Imagine standing at an airport. What a ridiculous suggestion! Again, those opposite are showing their Tea Party ideology of absolutely hating trade unions.

As a Western Australian Labor senator, I have seen all this before under the Court Liberal government in WA. They thought they could kill off unions by restricting right of entry. We have seen all this before. It did not work. They did not kill off trade unions. But do you know what? Workers killed off the Court government, because workers said, 'We want a fair deal in the workplace.'

Again, federally, we saw with Work Choices the Howard government try and kill off unions. What happened? Workers killed off a Prime Minister—that is what happened—and they changed the government. Workers in Australian stand for a fair go—a fair go at work; an even playing field. None of this bill—not one ounce of this bill—is about that. It is about redistributing the balance all in favour of the employers. This attack on right of entry demonstrates their Tea Party ideology—the hatred of the unions.

Unions are a collective of workers who come together to improve their wages and conditions. Workers value unions. Workers understand that when you are in a trade union your wages are higher, your workplace is fairer and you act collectively on behalf of all who work in your workplace and your industry. Decent bosses value unions too, because decent bosses want a fair workplace. They want to work cooperatively with a union. So once again, this is Work Choices by stealth. Workers will not stand for it and they will not stand for a government who promotes it.

Ricky Muir (Victoria, Australian Motoring Enthusiast Party) Share this | Link to this | Hansard source

I rise to make a contribution to the Fair Work Amendment Bill 2014. These amendments are designed to respond to a number of outstanding recommendations from the Fair Work Act Review in 2012 and to implement part of the coalition's 2013 election commitments. The more substantive amendments concern greenfield agreements, union right of entry and individual flexibility arrangements in modern awards and enterprise agreements.

I will say at the outset that I do not support this bill in its current form. I do, however, want to put on the record that I think some improvements can be made to the Fair Work Act, which is why I am supporting the second reading in order to debate the amendments that have been circulated.

A lot of the correspondence that my office has received relates to the amendments to individual flexibility arrangements, or IFAs, which were introduced in 2009. An IFA is a written agreement used by an employer and an employee to change the effect of certain clauses to their award or registered agreement. It is used to make alternative arrangements that suit the needs of the employer and employee. At page 106 of the 2012 review report, the panel noted, and I quote:

Many employers submitted that a return to statutory individual agreements is essential to meet their concerns about achieving individual flexibilities in the workplace. Similarly, many unions submitted that IFAs should not be part of the Fair Work system. We are not persuaded by either of these submissions. The impact of statutory individual agreements was perceived to be a major problem with Work Choices. The FW Act specifically sought to address this. The FW Act, however, carried the concurrent objective of providing for individual flexibilities. IFAs were intended to provide these individual flexibilities while maintaining protections for employees. We have therefore considered the operation of IFAs with these two key objectives in mind.

The submissions we received indicated that neither employers nor unions are happy with present arrangements concerning IFAs in agreements.

It seems, then, that there needs to be some tweaking to how IFAs operate in today's workplace, but as legislators we need to tread very carefully.

I have been a low-paid worker and I know what it is like to live from one pay to the next. I cannot and will not support any amendments to the current IFA agreements where there is a risk that unsuspecting employees will lose benefits or will be worse off. I note that the employee must be better off overall and that the employees cannot be forced into signing an IFA, but I am concerned that there are not sufficient safeguards to protect vulnerable workers who may be taken advantage of.

In addition to these concerns, there are two recommendations from the 2012 review in relation to the IFAs that are absent. One was the omission of the words: 'relatively insignificant, and the value of the non-monetary benefit is proportionate'. This has attracted criticism from the opposition and the ACTU as it acts as a safeguard to ensure that, if a monetary benefit is being traded away, the value of that benefit must be relatively insignificant and proportionate in value. The other omission relates to the IFA being lodged with the Fair Work Ombudsman. These omissions are concerning and why I am moving an amendment to oppose part 4 of this bill. I will also be moving an amendment to oppose parts 2, 3, 4, 6, 8 and 9 of the bill.

I would like to speak about the issues surrounding greenfield agreements and examine what the Fair Work Act Review Panel said in 2012. Many employers submitted to the review that there needed to be some form of determination or arbitration by Fair Work Australia, as it was then, in respect of greenfield agreements. The ACTU, in response to these submissions, suggested that this approach would not be consistent with international obligations for minimal interference in collective bargaining or the objects of the Fair Work Act. The ACTU make a very good point. Collective bargaining is viewed as a fundamental human right under international law by the United Nations and the International Labour Organization, and any reform that may have a negative impact on collective bargaining must be scrutinised closely.

At a minimum, I believe that the good faith bargaining requirements should apply to negotiations for greenfield agreements and I find it hard to believe that this requirement was not there in the first place—I find it very hard to believe. The most contentious issue, and it is one that I have discussed widely with my crossbench colleagues, relates to recommendation 30 of the Fair Work Act Review Panel, which is as follows:

The Panel recommends that the FW Act be amended to provide that, when negotiations for a … greenfields agreement have reached an impasse, a specified time period has expired and FWA conciliation has failed, FWA may, on its own motion or on application by a party, conduct a limited form of arbitration, including 'last offer' arbitration, to determine the content of the agreement.

The Education and Employment Legislation Committee stated that:

Some submitters, including some employee organisations criticised some of the measures in Part 5, arguing the amendments would allow employers to commence bargaining procedures implemented by clause 178B and would in effect 'count down' the clock to circumvent a proper bargaining process. Other witnesses and submitters rebutted these claims, arguing the inclusion of the 'good faith bargaining' provisions, together with the review process outlined would prevent anything other than genuine good faith negotiations from taking place.

I have carefully considered this issue and have arrived at the view that there needs to be some changes to the way greenfields agreements operate under the Fair Work Act. I am of the view that there needs to be a solution which will resolve stalled negotiations and see projects get off the ground. If the opposition are not happy with the solution currently before the Senate, then I encourage them to move amendments so that they can be debated.

In conclusion, I believe that the amendment co-sponsored by senators Xenophon, Day, Lazarus, Madigan, Wang and myself, and the amendment that I will be moving, reflect a balanced and constructive approach. There will be a chance for the Senate to debate these amendments and I look forward to listening to that debate.

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

Indeed, it gives me great pleasure to rise and speak on the Fair Work Amendment Bill 2014.

Here we are, once again in this chamber trying so desperately to implement the recommendations of the previous government's employment minister's Fair Work Act review. It is a pity that those opposite do not see the incredibly consultative approach that the former employment minister, Mr Bill Shorten, took within the sector. Actually, it was an independent review—if you believe the hype. It came down with many recommendations into the Fair Work Act to ensure that it was being implemented as intended, to see whether there were things that needed to be ironed out and, indeed, where we could make changes as a country to the Fair Work Act to ensure that it was being interpreted and implemented in the way that Mr Shorten intended.

What a pity that we are here debating implementing the opposition's own recommendations from their own review. But I do not think that we should actually be surprised, if we look back on the former Labor government—the Rudd-Gillard-Rudd government—and particularly the first iteration of the Rudd government and its grandiose approach to reviews. There was recommendation after recommendation and hundreds of thousands of dollars and hundreds and thousands of hours spent, not just by government officials, departments and ministers offices but indeed by those people putting into those reviews. I can think of the Henry tax review, the convergence review and the butcher paper and whiteboard markers—oh, sorry, that was the 2020 Summit!

Indeed, all of those processes undertaken by the previous government were merely a churn exercise—a mirage, if you like—to be seen to be doing something. In actual fact, when the results came down and their true stakeholders, the union officials, got their hands on those recommendations then there was no true, independent advice implemented in the act for a fair, balanced and flexible workplace. That is what we all want—we have no argument or truck on this side with a fair, balanced and flexible workplace. Indeed, one would think that is what the former employment minister wanted to see as an outcome. And yet, when faced with implementing the recommendations that would deliver on that outcome he squibbed it. We are here to help, and we hope that those opposite will help us to implement the recommendations out of the Bill Shorten review into the Fair Work Act.

As I said, we want to have a fair, simple, flexible and balanced industrial relations system. And I think that is what industry wants. Most definitely when you talk to industry—small businesses in particular—in your own communities, you know that they struggle with the complexity of our industrial relations system. That is why this government has set up one-stop shops and easy-access call lines so that small businesses can get fast, simple and effective access to information that will help them to ensure that their workplace is fair and simple for their own internal processes and also for their employees. Is it flexible to take into account workers changing personal circumstances and, indeed, is it flexible enough to take into account the changing circumstances of industry?

In the horticulture-producing region of central Victoria, if the crop comes off and it is a few tonnes over then you are going to have to work a few more hours. The tomatoes are not just going to sit there and wait until the next eight-hour shift can clock on and clock off. So we need to have flexibility within our industrial system that works for both parties and that allows us to keep those industries and those employers profitable so they can keep employing Australians.

When I had a look back at Mr Shorten's approach to this particular area, he too articulated that he wanted to have a fair, simple, flexible and balanced system. He was just misguided on how to get there. He was so misguided that he went out and got independent advice but refused to take—he refused to take it! But we are here to help. We could not agree more on this side of the chamber with workers being given the dignity and respect that they should have. So much so that an independent review panel was set up to see if the above criteria were achieved two years after the implementation of the Fair Work Act. As I outlined earlier, it was a comprehensive review process, where 53 recommendations were made. This was a comprehensive consultation process—250 submissions were received and round table discussions were had right around the country, with a large range of stakeholders and the usual suspects. They all had a guernsey—they all had a chance to have input into how it was going and whether it was going to deliver the flexible, balanced, simple and fair system that Mr Shorten and, indeed, this side of the chamber wanted to see in terms of industrial relations.

So I do not think that anybody can argue that it was not a comprehensive review. But he still 'was not happy, Jan', because when he got those recommendations what did he do? He went and had a few quiet chats and maybe some Chinese dinners at certain Sydney restaurants. Who knows? I am not making claims here. But he took away those recommendations and instead of trusting the process and trusting that the ACTU, the CFMEU and the AWU would have ensured they had effective representation through that independent consultation, he went and had a few side chats. The side chats resulted in the fact that less than one-third of those recommendations got adopted. With two-thirds of that work not adopted, you are only delivering for one side of the argument—a very disappointing result. I am sure all those submitters—some unions included, I am sure—would have felt squibbed by the process, but some would not have. Some would have been very happy with the outcome of preselections well paid for with the outcome of the Labor Party's treatment of that independent review.

I think the most disappointing thing for the then employment minister was that you can hand pick the henchmen you are going to get to conduct the review. We often hear from the other side that, if this side of the parliament appoints the review panels into government agencies or systems, then that is somehow partisan. If you want to take that same logic and apply it to this particular review, then you would have to say to those opposite that Bill Shorten surely would have picked a review panel that was sympathetic to his view of the industrial relations system. How incredibly disappointing when the review gets handed down and you cannot agree and you cannot tick off on the 53 recommendations that it makes. It is very, very disappointing.

The review identified many areas for improvement. It also suggested that it would be constructive to adopt the recommendations to improve the operation of the legislation. We want effective legislation in this place and we all want to ensure that our IR system is fair, simple, flexible and balanced, so it was very disappointing that, when the Labor Party had the numbers, they did not use them. It is really disappointing for Mr Shorten when his prized greyhound follows the real scent and not the fake rabbit, especially when it did not produce the political validation that the employment minister was seeking.

As I said earlier, it is like some many of the former government's review structural problems. The Henry tax review was stymied because he could not examine the whole tax system. He was told: 'Do the review, but don't look at that and don't look at that', so any result and any recommendations are not holistic. As a result, when we look at the recommendations that were adopted out of the Henry tax review, the previous government, once again, wasted a lot of people's time, wasted a lot of people's money and dodged around four of the recommendations, and even those were poorly executed. Who could forget the rollout of the mining tax? It was a classic: 'I'm going to tax the mining industry. I'm going to get the four biggest miners in the room to help me design that tax'. I wonder what the result was? Well, that was all there for everybody to see. I should not overly dwell on the incompetence of the former government, it is hardly fair.

The previous Labor government's review of the Fair Work Act not only involved biased terms of reference but it also only implemented one-third of the recommendations of the review panel. It was no surprise when the 2012 review recommended changes to encourage productivity growth amongst other fair, flexible and practical ideas. We all know how important productivity growth is going to be for our nation going forward. There was a report released this week that Australia's living standards have stalled, that there is not going to be growth as there has been over previous decades in our living standards. We need to ensure that our industries, our small businesses and our farmers can ensure productivity growth.

I get quite bemused and sometimes befuddled when I hear those opposite, particularly Senate Cameron in my Senate Education and Employment Committee, critiquing any idea that we need to see increases in productivity as the payoff for wages and conditions for the workers. SPC Ardmona in Shepparton in my home state is a great example where workers over a long period of time have gone to management and said: 'You know what? We want to keep the doors open. We want to keep our jobs. How can we help? What can we do to keep our business profitable?' That happens across regional Australia time and time again because employers and employees recognise that, without profitability and productivity increases, they are not going to be able to continue to employ people.

It is a fundamental difference between this side of the chamber and the opposite side of the chamber with their understanding of what an employer is. It is not a government department. I know government departments employ a lot of Tasmanians, and thank goodness because thanks to the Greens, Senator Rice, there is not a lot of industry left in Tasmania, which is very disappointing. The reality for small businesses and medium-sized businesses is that you need to be profitable to employ people. It is kind of two sides of the same coin. Most employees get that, and it is a pity the unions and those opposite do not. What is it with Labor and their unfortunate friendship with bureaucratic ineffectiveness? In fact, we know that their review process cost a fortune. I do not want productivity to get in the way of a decent press release, but I am getting off topic.

This bill will be implementing key aspects of the coalition's election policy and do not go any further. We were elected to government on delivering this legislation. We are not seeking to push the envelope. This is a very clear and very public piece of policy. It just goes to show the destructive nature of the opposition when in government that, despite going to the Australian people, being given the treasury benches, despite being elected overwhelmingly to deliver on this policy, you still sit here in petulant refusal, denying the Australian people, small businesses and indeed workers—to quote Bill Shorten, now opposition leader—a fair, balanced, flexible and simple industrial relations system. It beggars belief.

By including amendments on workplace access by unions and individual flexibility arrangements and by removing the ability to 'strike first and talk later', we are honouring specific policy promises that were also made by the Labor Party prior to the election but which Labor deliberately dishonours. Strike first, talk later—talk about a noose around the neck of business going into any EBA negotiations: 'We're going to strike, we're going to hold up your capacity to earn a dollar in order to pay our pages next week. We're going to hold you to ransom.' How ridiculous. How is that fair? How is that balanced? It was your own policy. But a forked tongue does not get in the way of a distracted, dysfunctional and, frankly, quite uninspiring opposition.

I want to comment briefly on Senator Lines' contribution. I know she is running for preselection in WA. I did not think it was going to be tight.

Simon Birmingham (SA, Liberal Party, Assistant Minister for Education and Training) Share this | Link to this | Hansard source

There's hope.

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

There is hope. There is hope, Minister Birmingham. I did not think it was close, so Senator Lines did not need to come out swinging quite as hard as she did, but she likes a fight and I am happy to take it up to her. There is no devil in the detail, Senator Lines. There is no devil in the detail. This review was not stacked. It was your review, it was Bill Shorten's review, so the detail is your own detail. In fact, this is a policy you also took to the election, so you are unfortunately dishonouring your own commitment to a fair, balanced, simple and flexible industrial relations system.

We are never going to get this right unless we can enact recommendations in legislation that deliver on our commitment, so that both sides in the industrial relations space feel it is a balanced system. But that will not happen until you get it through your heads, until you agree, that issues that affect productivity ultimately affect small business's ability to employ your members. But then I guess you do not have too many members in small businesses, do you, which are the powerhouse of our economy, particularly of regional Australia. You do not have a lot of members there, so you do not really care about those workers. You do not really care about those workers because they are not paying the fees that are going to get you re-elected. They are not actually participating in votes that are going to be useful to you in preselections, so you do not care about those workers. If you really cared about workers in this country, you would be supporting our Jobs and Competitiveness Program; you would be helping us to pass legislation that was going to fund programs that focus on the most vulnerable workers and unemployed people of this country; but you did not. You did not. You are not going to implement the recommendations of your own review to ensure our industrial relations system is simple and fair. You are just going to continue with the rhetoric, continue being the mouthpieces of the ACTU, continue being the mouthpieces of the CFMEU and continue to undermine your desire to truly represent the workers of Australia and to ensure they get a better outcome. And, ultimately, you will betray the trade union movement by backing those who take away its credibility against those that are trying to give it some credibility. You are going to have to get this right or it is not going to work out for you. It does not go any further.

This review was not stacked. It was not anti worker, it was not anti union, because Bill appointed it. Labor are not the only champions of the everyday worker and, as much as they would like to convince Australia that they are, this chamber will not be emotionally blackmailed into believing otherwise.

The future is not as bleak as Senator Lines and those opposite would have us believe. We are championing a strong, functioning industrial relations system that is sustainable and flexible, something that Labor did not have the guts to deliver because you like the partisan debate. It gives you something to fight about, rather than solving the problem, rather than delivering a system that is flexible for both businesses and the workers so that businesses can remain profitable and continue to employ the workers. It is a simple equation. I am happy to go out the back with a whiteboard and some whiteboard markers and explain to you! Businesses earning a dollar employ more Australians, and that has to be a good thing. There is honour into work. I do not want to see Australians on the unemployment line.

Labor, if you are serious, please deliver on Bill's recommendations, for the sake of the whole Australian workforce.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

Senator McKenzie's contribution would have you believe that this bill is about—

Senator McKenzie interjecting—

honouring an election commitment by the government.

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

That's funny!

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

It is funny, Senator Bilyk, because we know that there were all those other commitments—so many other commitments—before the last federal election given by the coalition and, at that time, Mr Abbott that they did not have any problem breaking. So, trying to con the community—

Senator McKenzie interjecting—

Senator McKenzie is leaving the chamber because her contribution actually showed the reason why this bill has to be opposed. It has to be opposed. She was not standing up here and talking about the broken commitments of the government in other areas. She was saying to the Senate: this is honouring a commitment given by the coalition in the lead-up to the last election. That is not quite right, because this bill goes further—and the government know it. It goes further than the commitment they gave prior to the election. Senator McKenzie's contribution, as always, has a focus on unions. I do not know what it is about Senator McKenzie and that focus. I would say to Senator McKenzie that she should really be looking at the work that unions do in protecting workers' rights, in supporting workers and their jobs, in this country. She has an ideological fixation on unions, and it does her no good. She comes in here and gives the same old speech every time.

We, the Labor Party senators, on this side do oppose the Fair Work Amendment Bill 2014. This bill was supported by Mr Abbott. Now we have the Abbott-Turnbull government. Who is next? I do not know. It is a bill that represents just another element of this government's attack on unions; it is another element of its attack on workers. Make no mistake: any attack on unions and their rights is an attack on workers and their rights. Any attack on unions is an attack on people's conditions of employment and an erosion of their industrial protections. From the very moment this government came to power it has been working to erode and undermine workers' rights. Most recently, we have seen it with their attacks on penalty rates and minimum wages and also their attacks on workers in the Australian shipping industry. Of course, we know on this side know that if this bill gets through—if those laws come to pass—it will decimate Australian jobs in the shipping industry.

What we have seen so far from this government is their failure to protect Australian jobs again, not only in the shipping industry, not only with their attack on penalty rates and minimum wages but also in the China-Australia Free Trade Agreement and in their politically driven royal commission. This bill, like all these other attacks on workers, is unfair—it is deeply unfair. But this is exactly what we have come to expect from this government. They did it before when Mr Howard was Prime Minister, and they are doing it again. They are being a little bit smarter about it. They are not calling anything Work Choices. But, make no mistake, as pieces of legislation such as this come through their aim is to do the same thing. This is a government—the Abbott-Turnbull government—whose ideologically-driven crusades have unfairness at their very heart. This is a government who has repeatedly attacked those who can least afford it.

In Senator McKenzie's contribution, she paints a picture of the workplace as a level playing field. She knows that is not the case. She can come in here and paint this rosy picture, but that is not the case and every senator in this chamber knows that it is not the case. The impact of the measures in this bill would hit those in insecure employment—young people and women—the hardest. They will impact on the most vulnerable in the workplace—who are, as I have said, those who can least afford it—and at a time when we are seeing the lowest wage growth in decades. In fact, the ABS data for the June quarter shows that Australian wage growth remains at its slowest annual rate since the government started issuing data nearly two decades ago. The data shows that wages rose by 0.6 per cent in the June quarter while the annual pace of growth held steady at a record low of 2.3 per cent. This is not the wage growth explosion that we have heard Senator Abetz warn about but rather wages are now struggling to keep pace with increases in the cost of living. Any further attacks on workers' right and conditions, as we see proposed in this bill, will only place workers and their families under further financial pressure.

Before the last election, the government proposed amendments to the Fair Work Act, but they said they would not go any further. This is the crux of the issue that Senator McKenzie was talking about. The government did propose amendments previously but they also said they would not go any further than their pre-election promises. The government also said that they would implement specific recommendations directly from the 2012 Fair Work review. We know that they have gone back on their word, yet again, and that this bill breaks another promise. It is a broken promise to Australian workers. It was not what was promised before the election, no matter how many times the government come into this chamber and suggest that it is honouring a commitment that they gave before the election; it is not. It does go further than the government said it would and it does disadvantage workers. It breaks a promise that the government made when it said that it would implement recommendations from the 2012 Fair Work review, without change. The bill before us today goes much further than what was recommended by the 2012 Fair Work review. The government is going further than its pre-election promises in a number of areas, which include individual flexibility arrangements, greenfield agreements and right of entry. If this bill is enacted, it is clear that workers will suffer, that workers will be disadvantaged.

The bill before us today undercuts integral rights that lay at the very foundation of our industrial relations system. One of the most concerning elements of the bill is the government's proposed amendments to individual flexibility arrangements, also known as IFAs. It was Labor who introduced these individual flexibility arrangements in 2009. Labor introduced the IFA because we understand that flexible workplaces can be beneficial to both the workers and their employers. These arrangements can vary the terms of awards or enterprise agreements, but workers—and this is very important point—must not be worse off under the IFA. Labor know that the arrangements must not leave someone in a worse position.

When Labor introduced the individual flexibility arrangements, we protected low-paid workers and families who could least afford cuts to their household budgets. We ensured that there were adequate safeguards in the legislation. It can often be hard to successfully negotiate a win-win for both parties, but we know it is possible to change work arrangements and come up with a win for both the employee and the employer. Labor's Fair Work system was fair. I believe that it was fair and equitable for everyone. It was a win-win. It was a win for both employee and employer. It was working well in the majority of enterprise arrangements in Australia.

Under Labor, the individual flexibility arrangements could not be imposed on unsuspecting workers in a bid to take away their hard-won conditions, such as penalty rates. We know that the Liberals want to get rid of penalty rates for Australian workers. We know they it have on their agenda to cut the penalty rates of 4.5 million Australian workers. Those opposite are coming out of the woodwork and lining up to voice their views on cutting penalty rates.

Labor know that cutting penalty rates for hospitality workers, as Senator McGrath has called for, will be just this government's first step in attacking the take-home pay of nurses, paramedics, aged-care workers and cleaners, who all rely on penalty rates to pay their bills. Not only do we know that that is what this government is intent on doing but so do those workers. We know that if you are a worker who earns penalty rates then your take-home pay is under threat from Mr Turnbull.

I will now return to the bill. When it comes to workplace relations and this government, it is when you drill down into the detail of this bill that you realise just what is at stake. The government is unfairly proposing that a key safeguard be abandoned when it comes to what can be traded away through an individual flexibility arrangement. The relevant expert panel recommendation states 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-monetary benefit must be in 'proportion'.

Despite the expert panel's clear prescription, the words 'relatively insignificant' and 'proportion', which protect workers, are gone. They have sunk without a trace. You have to wonder why. We on this side know why. The full recommendation is missing, and that is a very worrying reflection of this government's approach to workplace relations. Labor are very worried. Labor do not regard it as reasonable for workers to trade away an important part of their take-home pay for a non-monetary benefit. That is not fair and it will make low-paid workers particularly vulnerable. We want the government to implement recommendation 9 of the expert panel in its entirety, as it promised. Otherwise, we must conclude that this is the first step to cutting penalty rates and allowances for Australian workers.

We know that some of the senators in the coalition have already advocated for—

Senator Birmingham interjecting—

I am not sure what Senator Birmingham had to say there, but he is obviously a part of this Abbott-Turnbull government that is starting the process of cutting penalty rates. Perhaps he even supports it. We will see.

We know that the Liberals cannot be trusted to protect the wages and conditions of workers. They have shown over decades that they cannot be trusted. When they controlled both houses under Mr Howard, one of the first things they did was bring in Work Choices. The first chance they got, they said, 'Yippee! We are going to smash wages and conditions for workers.' So we know that the Liberals cannot be trusted to protect workers.

In fact, as I have said, undermining workers' conditions, rights and representation is at the heart of this government's ideological agenda. This is their real intention. They try to keep it under wraps, but they can only manage to do that for a period of time before it bursts out again. Two days into the Turnbull government and here it is, rearing its ugly head again.

This bill is not about implementing the recommendations of the expert panel. It is not about providing flexibility in the workplace, as they may say. It is about removing protections for workers. It is about the Turnbull government's plan to revive Work Choices.

The bill includes a requirement for employees to provide their employers with what has been mistakenly labelled as a 'genuine needs statement'. This statement is intended to capture an employee's state of mind at the time the IFA was agreed to. The government is trying to claim that this is a safeguard for employees, but what it really does is provide employers with a deferred defence to any future claim that they contravened a flexibility term in agreeing to an IFA. All the statement will do is provide additional protection for the employer where an employee might seek to take action against them.

As the ACTU wrote in their submission to the inquiry into this bill by the Senate Education and Employment Legislation Committee:

Because each IFA will now include a testimonial from the worker about how it meets their needs and leaves them better off overall, employers are likely to rely on that testimonial to demonstrate their 'reasonable belief' for the purposes of the defence. A successful defence will result in no exposure to a penalty, and no requirement to remedy any underpayment.

Labor acknowledges that the Fair Work review panel did recommend that the act be amended to provide a defence to alleged contravention of flexibility, but the proposed amendment is not in the spirit of the recommendation. It is unfairly weighted to advantage employers.

Labor also has concerns about proposed amendments to the greenfield agreements. Labor is concerned that, under the proposed amendments, employers will basically be negotiating with themselves and setting terms and conditions themselves. The government believe the proposed amendments will improve the bargaining process for greenfield amendments by resolving impasses that come up from time to time. Labor opposes these amendments because the bargaining process will not be improved by simply removing one party—the unions—from the negotiating table.

If this bill is enacted, employers would be able to set the terms and conditions for prospective employees without those employees having a real say or a real voice. Employers can chose to negotiate with just one employee organisation at the workplace, even if another employee organisation represents the majority of the employees. Worse still, after an employer agrees to bargain with an employee organisation, the employer at any time could issue a notice to commence a three-month negotiation period. It is not a fixed process.

I am running out of time, but I would ask and urge—

Simon Birmingham (SA, Liberal Party, Assistant Minister for Education and Training) Share this | Link to this | Hansard source

I think you are running out of things to say, too.

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

No, not at all, Senator Birmingham. I would ask that this chamber oppose this bill, for the workers of Australia. (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Amendment Bill 2014. While there are some measures in this bill I support and will be supporting in the second reading stages of the bill, there are other measures I simply cannot agree to.

It is worth looking at the history of workplace relations—a thumbnail sketch, if you like—to put this bill in context. Workplace relations have a long, turbulent history in Australia. Modern workplace relations began in 1904, when Australia established the Commonwealth Court of Conciliation and Arbitration. It was the first tribunal of its kind in the world, and it was tasked with resolving disputes between employers, employees and unions. Three years on, in 1907, the Commonwealth Court of Conciliation and Arbitration set the first minimum wage in the landmark Harvester case. On the ACTU website it mentions how the Harvester case set a minimum wage for unskilled labourers of two pounds, two shillings per week—the amount an average worker paid for food, shelter and clothing for him and his family. Notice that the case was all about a male worker, because the level of female participation in the workplace was much, much lower than it is today. That was based on supporting a family of five: the couple and three children.

For decades on the Commonwealth Court of Conciliation and Arbitration continued to make great strides in establishing and improving basic worker entitlements. As well as a minimum wage, a standard 38-hour working week was established in 1983, together with 10 days of sick leave and four weeks of annual leave per year. These are benefits that many of us take for granted now.

During World War II regulations came into effect that increased a woman's wage to 75 percent of a male's wage. The Commonwealth Court of Conciliation and Arbitration adopted these regulations and set a new standard in 1950. However, it was not until 1972 that the separate minimum wage for women was removed. By this time the Commonwealth Court of Conciliation and Arbitration had been decommissioned and re-established as the Conciliation and Arbitration Commission. The Commission established the right to equal pay for work of equal value. As a result of this decision, over half a million women became eligible for full pay, with women's wages increasing by approximately 30 per cent. An amendment to the Conciliation and Arbitration Act by the Whitlam government extended the adult minimum wage to include women workers for the first time from 2 May 1974.

I would like to pause for a moment to reflect on the issue of pay equality. Despite the passing of some 40 years since the Whitlam government's landmark legislation, the gender pay gap still persists. Using the latest data from the Australian Bureau of Statistics, the Workplace Gender Equality Agency calculates that the national gender pay gap is 17.9 per cent. In dollar terms, that is a difference of $284.20 per week. This 17.9 per cent pay gap figure is representative of the overall position of women in the workforce. It takes into account a number of complex and interrelated factors that contribute to the pay inequality experienced by women. Such factors include the differing rates of pay in male- versus female-dominated industries and the lack of women in senior positions. That is why I hope that both the government and the opposition will support my legislation on gender balance on government boards, which I think will go some way in dealing with those issues as part of that cultural shift.

One measure in the bill before the Senate today, the Fair Work Amendment Bill 2014, is a small but important step in empowering women in the workplace. It is the requirement for an employer to discuss an employee's request to extend their unpaid parental leave before dismissing such a request. I will discuss my support for this measure in more detail shortly but thought it timely to raise it now in the context of addressing the history of women's participation in the workforce.

I return to the evolution of workplace relations in Australia. The 1990s ushered in the era of enterprise bargaining, where employers and employees could approach the Australian Industrial Relations Commission to settle workplace disputes. A national workplace relations system was taking shape, but 2006 saw the introduction of then Prime Minister John Howard's infamous Work Choices. Ostensibly a measure to improve employment levels and national economic performance, Work Choices did see the erosion of a number of basic employee rights. That was a case where the coalition had the numbers in the Senate, and I dare say that the course of political history in this country may well have been different if a so-called hostile Senate blocked that legislation. Sometimes the Senate can save a government from itself, whether it is a coalition government or a Labor government.

After its implementation in 2008, the Fair Work Act, introduced by the Rudd government, with then Deputy Prime Minister Gillard driving those changes, was subject to review in 2010. The Department of Education, Employment and Workplace Relations handed down its final report on the review in 2012. When drafting the Fair Work Amendment bill 2014, this government—and I say this respectfully—has actually cherry picked from a number of the 2012 review's recommendations. However, there are still measures in this bill I simply cannot support. Some of these measures will be removed by Senator Muir's amendment. I can well understand Senator Muir's caution with respect to some of the measures. I believe that some of the measures need further consideration and there needs to be a very cautious approach. I will return to the contentious measures in the bill a little later, but for now I turn to the provisions which I believe to be sensible and practical reforms.

Firstly, part 1 of the bill requires an employer to discuss any request from an employee to extend their unpaid parental leave before the employer can refuse such a request. I congratulate the government on this provision. It is something that I understand the Labor Party has long been an advocate for. It strengthens an employee's rights in relation to unpaid parental leave and it clarifies the obligations of employers to not dismiss such a request without due consideration. I think smart employers in this country should do everything they can to accommodate those requests for women in the workplace. In my very tiny legal practice, when staff have come back from maternity leave I have done everything I can to accommodate their working days and to have some flexibility in their working arrangements so that they can still participate in the workplace. That involves having flexible shifts or flexible days when they can work to accommodate their family circumstances. If you have a good employee, a valued employee, you do everything you can to nurture them and to keep them in your workplace.

The second measure I support is contained in part 3 of the bill. It relates to the accrual of annual leave while an employee is absent from work and in receipt of workers compensation payments. As a person who practised in the personal injuries field for many years and who still has a tiny legal practice in my name, this is a subject I have given serious thought to. I have seen the challenges injured workers and their families face. These challenges are often compounded by unclear, confusing and inconsistent laws relating to workers compensation and employees' entitlements. When the Liberal government in my home state of South Australia attempted to bring in what I thought were some quite draconian changes to workers compensation laws when I was president of the local branch of the Plaintiff Lawyers Association, they were resisted by the Labor opposition and by the Australian Democrats and were blocked because they were very unfair changes. The irony is that, a number of years later, even more draconian changes were brought in, which slashed workers' entitlements, and they were changes that were brought in by a Labor government. I see the irony in that. They were abetted by the opposition, who went along with those changes. Workers' rights in my home state have been significantly eroded.

The 2012 review recommended that the Fair Work Act be amended in order to remove such uncertainty to provide that employees cannot take or accrue annual leave while absent from work and in receipt of workers compensation payments. I think that, on the face of it, that is not unreasonable, but I understand the concerns that Senator Muir and others have that this may have a number of unintended consequences, and it needs to be looked at more carefully. For the purpose of this bill, that should not be dealt with at this time; I do not support those changes. But I do think we need to revisit that, because there may be unintended consequences, but the policy intent is not necessarily a bad one.

The third measure I support is contained in part 7 of the bill. This measure fixes the strike first, talk later loophole in the Fair Work Act. The 2012 review of fair work legislation recommended that an application for a protected action ballot order may only be made when bargaining for a proposed agreement has commenced. Part 7 implements this recommendation. It makes it clear that disagreement over the scope of a proposed enterprise agreement does not prevent the taking of protected industrial action. I believe this is a sensible reform that encourages disputes to be settled by way of conversation and negotiation rather than through industrial action. It has my full support. I think it was a loophole or an anomaly in the legislation introduced by the Rudd-Gillard government back in 2008. This is a sensible reform that is consistent with the recommendations made by the 2012 review triggered by the Gillard government.

The fourth measure for which I wish to express my support is contained in part 10 of the bill, which addresses the problem employers face when they cannot locate employees who are owed entitlements. If implemented, part 10 of the bill would allow the employer to pay these entitlements to the Fair Work Ombudsman. The employee is then able to claim their entitlements from the ombudsman. This creates a simplified process for employees to seek what is owed to them. Employers too will benefit, as their liability to their employee can be discharged and responsibility for management of these entitlements taken over by the Fair Work Ombudsman

This amendment also allows for the Fair Work Ombudsman to pay interest on the moneys owed to the employees, which is unambiguously a fair measure and is long overdue. Once again, it is a sensible measure and one that I am very comfortable in supporting.

The final measure I support relates to greenfields agreements and is contained in part 5 of the bill. However, my support is contingent on an amendment I will move that is co-sponsored by senators Day, Lazarus, Madigan, Muir and Wang. Part 5 of the bill extends the good-faith bargaining framework to the negotiation of single-enterprise greenfields agreements. Greenfields agreements are enterprise agreements that are reached between an employer and a union or unions before any employees have been engaged to work on a greenfields project. Currently the Fair Work Act does not require negotiations for greenfields agreements to be conducted in good faith. This is clearly a loophole. It is an anomaly and it was picked up in the review that was released in 2012. This is in contrast to negotiations of other agreements under the Fair Work Act, so I think the anomaly is quite clear there.

As a result of the absence of good-faith bargaining provisions, employer groups have raised concerns—I believe they are legitimate concerns—about delays of the commencement of projects when negotiations with unions stall, particularly where there are disputes about wages. This creates a high level of uncertainty around labour costs and exposure to industrial action, which can impede a business's ability to secure finance for a project. If they do not secure finance for the project, they cannot get the project going. If they do not get the project going, they cannot have employment. They cannot get a project started—and in some cases hundreds if not thousands of jobs are created in these greenfields projects.

Part 5 of the Fair Work Amendment Bill attempts to rectify this by extending the good-faith bargaining framework to the negotiation of greenfields agreements. This is consistent with recommendation 29 of the 2012 review of the Fair Work legislation. It is worth referring to page 173 of the then Australian government's Towards more productive and equitable workplaces—an evaluation of the Fair Work legislation, where it says:

While the Panel does not possess hard and fast views, FWA could be empowered to resolve the remaining outstanding issues between the parties by a process of arbitration, which is colloquially known as ‘last offer’ arbitration. In other words, FWA would examine the positions taken by the parties on the remaining outstanding issues and would be empowered to choose the position either of the employer or of the trade union or trade unions. It is the Panel's expectation that the ultimate availability of this type of final offer arbitration will ensure that the parties adopt realistic approaches to issues in their negotiations with one another.

To me, that final sentence is the key phrase here. And for it to be effective there needs to be a time frame. In order to provide more certainty and a more structured approach to the negotiation process, the 2012 review recommended that, when a specified time period has expired or conciliation has failed, Fair Work Australia can conduct a limited form of arbitration. The Fair Work Amendment Bill builds on this recommendation by inserting what a specified time period can be. In the case of the current bill, the government is proposing three months after the date when negotiation of the greenfields agreement started. The amendment I have co-sponsored with senators Day, Lazarus, Madigan, Muir and Wang changes this specified time period from three to six months. We believe that this provides more time and, importantly, more opportunity for both employers and unions to reach a consensus. I am very pleased that a number of my crossbench colleagues have been able to come together on this particular aspect of the bill, and I hope the government will support this amendment.

Now that I have discussed the positive, it is time to turn to the parts of the bill I cannot support. The proposed individual flexibility arrangements are one such measure. While I understand that being able to negotiate on when work is performed, penalty rates and allowances can provide employers and employees with greater flexibility, I am concerned that vulnerable employees could be disadvantaged by individual flexibility arrangements. I have been criticised by the union movement—who I think I have a pretty good relationship with on a whole range of issues—in relation to the issue of penalty rates. I do not want my position on penalty rates to be misunderstood or misinterpreted, as it has been, particularly in the heat of an election campaign. I think that there is a special case, only for small businesses with 20 full-time equivalent employees or fewer and only in the hospitality and retail sectors, to look at a more flexible working arrangement where you do not have penalty rates of 175 or 200 per cent, which has been a job killer. My motivation for opening up this debate, for arguing the point and for putting up a bill which was quite friendless in this place was that young people, many of them university students, told me that when there was a spike in penalty rates they actually lost their jobs. While I am unlike those in this place who do not believe in minimum awards and in a strong, robust award system—which I absolutely believe in—I think we need to consider that workplaces have changed, that the pattern of people's shopping and leisure activities has changed and that Saturdays and Sundays are—

Carol Brown (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary for Families and Payments) Share this | Link to this | Hansard source

You have to go out and talk to some families.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Of course you do, and I think you need to have very strong safeguards. It is something I have discussed with the SDA—the shoppies union, to put it colloquially—who I think do an outstanding job in representing their workers. The issue is what you do to small businesses that shut down on weekends, particularly on Sundays, whose workers were quite happy to get 150 per cent of the award but that close down because it was ratcheted up to 175 or 200 per cent. Of course there is a fair process to be gone through through Fair Work in relation to this. But I am concerned about those, particularly university students, who have missed out on this. Senator Brown raised the point about families. If you are a full-time employee you should of course get your penalty rates. But I think we need to have a reasonable national conversation about casual employees and also make it very clear that once you get beyond the 20 full-time equivalent employees you should be big enough to look after yourself and be subject to enterprise bargaining agreements where there are appropriate safeguards in place. When I look at the figures for youth unemployment in my home state of South Australia, it does concern me. All I am suggesting is that there needs to be a sensible approach to this.

But I cannot support what the government wants to do with individual flexibility arrangements, because it does not have, as Senator Brown rightly pointed out, the safeguards that were recommended by the panel. It goes way beyond that. It does not allow for taking into account that it be specified in writing, that it be relatively insignificant and that the value of non-monetary benefits be proportionate. In the absence of those safeguards, I think we need to simply reject what the government is proposing in relation to that. Part 4 of this bill does not contain these safeguards. As a result, I cannot support this measure.

I also have concerns about the provisions in part 9 of this bill, namely the ability of the Fair Work Commission to dismiss an application for unfair dismissal without holding a hearing or conducting a conference. I think that needs further debate, further consideration. There ought to be sufficient safeguards for workers, and I do not think that the government has thought through those amendments carefully enough.

Overall, I think the measures that I have said I will support will enhance productivity and enhance employment, particularly on greenfield sites. These are important changes and I emphasise to the 33 people who may be listening on NewsRadio—maybe it is 34, and every time I say that I get abusive emails saying, 'I have been listening and how dare you dismiss the number of listeners'—that these changes are based on a review by the Gillard government into Fair Work and I think that the changes that I will be supporting and that a number of my crossbench colleagues will be supporting are fair and measured and reasonable and are based on what a previous Labor government review suggested. That is why I will support the second reading of this bill.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the Fair Work Commission Bill 2014 and put on record some of my concerns relating to the bill. As senators will already understand, Labor does oppose the bill. That is a shame because had there not been mission creep in the review with the government implementing their blind anti worker, anti union ideology through this bill there would have been an opportunity to work more closely on it. The bill symbolises another broken promise by the government. They went to the election saying that they would go no further than what was contained in their election policy statement but, as other senators have outlined, this bill certainly goes further than that. Those areas are the areas that Labor members, whether they are Labor senators who have participated through the Senate process or other Labor members who have spoken on the bill, have raised in their comments.

Senator Xenophon went to the history of industrial relations in this country. Anyone who understands that history, even if we just focus on the last 15 years or so, will know that the issue of industrial relations has been deeply divisive. Certainly when the conservatives have been in power there has been a constant series of legislation that has sought to undermine working people's conditions. More often than not legislation was disproportionally targeted at working people who are not on a level playing field with employers but who find themselves in lowly paid, highly casualised industries where there is little power for employees to advocate and protect themselves from the constant winding back of conditions of employment by employers who are wanting to increase their profits. That is why the Labor Party will always stand up for those working people. It is part of our history, it is part of our DNA, just as it is part of the conservatives' DNA to chip away at conditions—and not only chip away at working people but also seek to undermine the organisations that legitimately represent those people.

We hear every day attacks on unions from the conservative side of politics. Many of the conditions which we enjoy today as working people, and have enjoyed in our careers outside this chamber—sometimes influenced by this chamber—are conditions that the unions have fought for over many years. They are in areas like workers compensation, occupational health and safety and, more broadly, industrial relations: wage protection, conditions of employment, safety in the workplace, access to reasonable and flexible arrangements have all been campaigns that have been led and won by unions. Despite the picture that those opposite have attempted to paint, unions have always been prepared to engage in constructive and productive discussions about how to ensure that the industrial relations system provides productive and efficient processes to support a growing economy. They are part of that discussion, they are central to the discussion, and that is important because a growing economy is good for working people in the sense that it produces jobs and creates wealth and allows that wealth to be shared. That is what we would hope for, anyway.

This bill might not be called Work Choices—I know the scars of Work Choices remain on the other side of the chamber—but the overreach in the bill, albeit a little more hidden than it was in Work Choices, is there. This bill seeks to undermine the role of unions, it seeks to reduce their effectiveness in the workplace and it is a step towards getting rid of collective bargaining. The result of that is less about the unions and more about the outcome in individual workplaces and how ordinary Australians who turn up for work every day will be affected. The elements in this bill—particularly in areas like part 4, the individual flexibility arrangements; part 5, the greenfields arrangements; and part 8, the right to entry—would certainly make workplaces more insecure and again disproportionately affect those on the lowest incomes, the poorest people, working across the community. I know we have heard coalition senators say that it is just implementing a review that Bill Shorten instigated, but it is not. It does that and it goes a lot further. By doing that it seeks to get rid of some of the safeguards that were put into the bill, particularly in IFAs, for a particular purpose.

I will just look at the bill in those particular areas. Part 4 seeks to amend arrangements in relation to flexibility terms in modern awards, enterprise agreements and individual flexibility agreements. It will allow employers and employees to make individual flexibility arrangements about when work is performed, overtime rates, penalty rates, allowances and leave loading if these matters are dealt with in a particular enterprise agreement.

Labor, as others will know, was the party when in government which introduced individual flexibility arrangements, in 2009. That goes to the point I raised earlier that they were introduced—and I will refer to them as IFAs—because the Labor Party agrees that flexible work practices can deliver benefits to both employees and employers if applied appropriately. But, at the same time, there have to be protections for vulnerable workers. That means the safeguards that were put into the legislation were put in there for a reason. They cannot and should not be imposed on employees in terms of a one-way discussion as a means of ripping away conditions such as penalty rates. There have to be some limits to it. Examples have been provided where an employee swaps a condition or forgoes a relatively insignificant monetary benefit for a non-financial benefit and that is a positive outcome. But, again, as I say, it is also about the safeguards that are provided to ensure that particularly vulnerable employees are not forced into situations that see them trade off conditions for relatively little benefit.

As I understand it, the review that looked into this matter did provide advice that the monetary condition forgone or the money forgone must be relatively insignificant and that the value of the non-monetary benefit must be proportionate. But these are not terms found in this bill. Again, the devil is in the detail when it comes to industrial relations, because we have been there before. The conservative side of politics have form: what you say you are going to do and what you actually do or provide for through legislation are not the same. That goes to some comments made by Senator McKenzie in her speech within the last hour where she kept referring to providing a 'fair, balanced and simple industrial relations system'. When those words are used by a conservative politician it always raises my ire because the code for 'fair' when it is being used in that context is usually unfair; 'balanced' usually means skewed, and skewed to one side of the employment relationship, and it normally is not the employee's side; and 'simple' usually means getting rid of conditions and entitlements. That is actually the language. It sounds very nice, because I think everyone would say, 'Yes, we need a fair and balanced system and we would prefer simple arrangements to be in place.' But when you actually understand what that means, the language of a conservative government means unfair, skewed and removing entitlements that have been hard fought for and campaigned for, usually over many years, and they need to be protected. And then, when you look at who will protect those conditions, you see that it will be the strongest, the loudest and those who will advocate the hardest for them, the trade union movement. There are other aspects in this bill, which actually seek to undermine the role that unions are legitimately allowed to play within the workplace, and I will touch on those in a moment.

Interestingly, when I was reading the Bills Digest, which, as a new senator I find is always a very good document to go to to get across legislation because it also provides a good analysis of stakeholders' views on the bill, I saw a quote from the Business Council of Australia from their submission that, I think, they provided to the Senate committee:

… today’s Bill is an important first step in reforming our workplace laws to be a better fit for a more productive and competitive economy …

This, again, goes to the level of mistrust that exists across the community around changes to our industrial relations system, largely because of the impact that Work Choices had on ordinary Australians and their working conditions. Picking up on: 'This is an important first step,' they then go on to say:

… but more changes are needed to ensure a system that works for all workplaces and all workers.

Again, going back, this forms part of a suite of bills—and there are more before the Senate at the moment—that seeks to undermine unions, working people and creates a more insecure environment, particularly for low-income and casualised workers.

Again, consider the impact that this bill would have, if it were allowed to pass the Senate unamended. I think Senator Xenophon made some comments about the ability for women to negotiate more flexible arrangements. I strongly support that, particularly for women with caring responsibilities, whether it be of children or older parents. We know that women as carers are disproportionately overrepresented across Australia. When I apply that to this bill and the safeguards that have been taken away, I cannot see how this will not disproportionately affect working women in a negative way.

We already know that there are more women who work at the award minimum compared to men. We already know that women are more likely to be casual employees and that they are predominantly found in many of the low income professions, like cleaning and child care. We know that they are proportionally less well paid and that they are usually working under award conditions and entitlements, so awards are very important to them. They are often in professions where there is not a huge capacity for advancement—where the structure within the workplace does not allow for huge advancement opportunities—and I am speaking in a very generalised way here.

By removing the safeguards, this bill is saying: not only are you paid the least and not only do you have the most insecure employment; what we would like you to do now is trade off what little you have in order to get a bit more flexibility for the employer or your own arrangements. It is a constant series of trade-offs. It is not about building up and creating a better environment for women juggling kids, older parents and other responsibilities. It is a constant, slow but determined chipping away at those conditions that are important to women and should not be traded off. I cannot see how this bill, as presented, will provide people with the right to, in Senator McKenzie's terminology, 'a fair, balanced and simple environment to work in'.

This is also coming at a time when we now know that we have almost 800,000 Australians unemployed, where the unemployment rate has a six in front of it, where we have particularly young Australians struggling to find work and where we have a government that would like to ensure that they do not have any access to any social security for five weeks or so now while they are attempting to pull themselves together if they do not have a job. This is the environment that this bill seeks to operate in. Not only are there genuine difficulties for people who are unemployed and trying to find work; the level of inequality that exists across the community is the highest it has been, as I understand it, for 75 years. It is in this environment that we are presented with a bill that seeks to undermine and reduce the ability of working people to be represented by unions and to have a fair environment in which to bargain with their employers.

In relation to greenfields agreements and right of entry: go out into a workplace where you see vulnerable groups of workers and have a look at how it operates. Do you seriously expect that, for people who want to call the union in but are a bit worried about letting the boss know, this invitation to invite the union is something that can be done? It beggars belief. It shows a complete lack of understanding about how some of these workplaces operate and about how vulnerable particular groups of workers are, to believe that a union then goes to the Fair Work Commission and has to apply for an invitation to enter a workplace to deal with workplace issues. I have been a union organiser—many years ago now—and I have also worked as an advocate for people with a disability in sheltered workshops. The thought that that group of workers could get together and say, 'We'd like the union to come in, but we have to go through this process, and hopefully we can remain anonymous, ' and that that would allow them as employees to be protected to raise a legitimate issue—whether it be around a condition of employment or a more urgent issue like workplace safety—just completely ignores the reality of how thousands and thousands Australians experience their workplace every day. This is why it is so important to ensure that unions are able to enter workplaces for legitimate reasons and conduct themselves in a legitimate way and also for unions to be able to bargain on behalf of their employees. It is so important that employers engage in that constructively and also acknowledge the legitimate right of unions to participate in that discussion.

Unions are there to provide large-scale advocacy for groups of workers that want them to act on their behalf. There should be no reason why we seek to reduce their influence. We know that the conservatives do not like unions. We know that the conservatives like to paint them as illegitimate organisations. But throughout the history of this country there has been the need for collective bargaining and collective action in order to improve the lives of those Australians who need that collective action to support them. That is why the Labor Party has raised these concerns. Labor has raised them in its dissenting report and they are going to be continuously raised by other Labor speakers. It is fundamentally important. We cannot allow a bill that looks harmless until you read the detail to go through without putting on the record the legitimate concerns of hundreds of thousands of workers who do not have a voice in this place.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

There are 761,350 Australians who are unemployed. Hundreds of thousands of these people are in this position because of the Fair Work Act. If an external force were threatening the livelihoods of hundreds of thousands of Australians, we would declare war on it. But, in this instance, we are doing it to ourselves. The Fair Work Act should be repealed.

People should be free to form a union, even though this essentially involves workers engaging in collective agreement, which would be called collusion if it were done by business people. This freedom is assured through an exemption contained in the Competition and Consumer Act. As such, the Fair Work Act is not needed to allow people to form a union. People should be protected from harm to their health, safety and welfare through the minimisation of risks at work. This protection is provided by workplace health and safety law; therefore, the Fair Work Act is not needed to deliver workplace health and safety. People should not be denied employment just because of the colour of their skin, their gender or their membership of a trade union

Antidiscrimination law combats this and other forms of discrimination, so, again, the Fair Work Act is not needed. But above all, people should be free to offer jobs and others should be free to accept them. The Fair Work Act is in no way necessary for these voluntary agreements to occur and all too often it actively prevents such voluntary agreements from occurring.

The Fair Work Act bans agreements where someone agrees to work for less than $17.29 an hour. Removing this ban would lead to more jobs being offered and more jobs being filled by unemployed Australians. Based on a conservative reading of the shadow Assistant Treasurer's research, more than 200,000 unemployed Australians would be employed within months. The absolute kindest thing we can do for the unemployed is to make it easier for them to reach the first rung on the working ladder. Once they do, they invariably move up further.

The Fair Work Act also bans employment agreements that involve paying more than $17.29 an hour if those agreements do not conform with prescriptive employment regulations called 'awards'. The widely acclaimed move to enterprise bargaining saw the share of workplace awards fall away over the Hawke, Keating and Howard era, but with the award modernisation process brought in by the Rudd-Gillard government, we have witnessed a concerning increase in the share of the workplace subject to this command-economy style awards. Where once awards set the wages of 15 per cent of the workforce, now 19 per cent of workers have their wages set by government. That this recentralisation of wage fixing is not widely known shows that parliamentarians, lobbyists and economic journalists are asleep at the wheel. Even if our system of government is unable to pursue further reform, we must at least defend the reforms of the Hawke, Keating and Howard era.

The Fair Work Act prevents a business person from firing an employee who fails to attend work under provisions euphemistically referred to as a 'right to strike', and the Fair Work Act prevents a business person from firing an employee without the approval of a tribunal under provisions euphemistically referred to as 'unfair dismissal laws'. If business people cannot rely on staff attending the workplace and cannot fire staff without navigating a bureaucratic maze, why will they want to hire them in the first place? Many lament the rise of the machines but do not lament the laws that continue to promote their adoption at the expense of human beings.

Finally, the Fair Work Act grants privilege to unions, including rights to enter private property against the will of the owner, and rights to be a party in employment agreement negotiations irrespective of whether the union enjoys support from employees. The Fair Work Act is a creation of the unions, by the unions and for the unions, and the bill before us shows the continuing handiwork of that ever-diminishing sect. Part 1 of the bill seeks to prevent an employer from refusing an employee's request for an extension to unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request. As it stands, the Fair Work Act simply requires that refusals must be based on reasonable grounds. The Fair Work Act Review recommended inserting this requirement for there to be a discussion, but it did so with next to no explanation after having outlined that there was no problem with the existing provision. This is change for change's sake. It would generate unnecessary compliance and administration. It would also create the possibility of litigation based simply on the inadequacy or absence of a discussion, even if a refusal to extend leave were reasonable. The only people who benefit from this circle of compliance, administration and litigation costs are the thousands of lawyers in government and the private sector who make labour law their living.

The remainder of the bill represents a baby step in the right direction. But the 761,350 Australians who are unemployed need more than timid baby steps. They need the Fair Work Act to get out of the way and they need it now.

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to very strongly oppose the Fair Work Amendment Bill 2014 that is before us this morning. Firstly, I want to take up Senator Leyonhjelm's contribution. I noted that Senator Leyonhjelm talked about the fact that the Fair Work Act prevents employers from paying below a certain minimum hourly rate of pay. Senator Leyonhjelm is correct in making that point, but I understood him to say in a following point that there are provisions of the act which prevent employers from paying above that minimum rate of pay. I want to make it very clear that, in my experience as a trade union official, there are many examples in the industries that I have previously had experience with of employers seeking to pay rates of pay in excess of the rates provided for in the award. That is simply the sign of a good employer, and there are many good employers who understand that award conditions are a minimum and that, in order to attract good workers and to retain good workers, it is important that they be seen as the employer of choice in their particular industry. It is certainly not a breach of legislation. I hope I am not misunderstanding Senator Leyonhjelm's contribution, but it is certainly not a breach of the Fair Work Act for employers to make payments to employees in excess of those rates of pay. In fact, there is no discouragement anywhere. Unions would certainly encourage employers to pay in excess of the award rates of pay.

I just want to make the point that there seems to be a misunderstanding about award conditions in general. The awards system that we have in Australia, which has been built up over many years, contains a fairly modest set of conditions which many of us would be surprised at—the minimum hourly rates of pay that are contained in those awards are not a workers' paradise. They are not Nirvana; they do not allow people to live in the lap of luxury if they are paid in accordance with the award rates. They are very basic working conditions. I think this is important when one looks at penalty rates, which are a pretty prominent feature of the awards system. It is important to note that those penalty rates generally supplement a very modest, basic hourly rate of pay, and they are very important to those employees who are being paid in accordance with the minimum rates of pay of an award.

With that response to Senator Leyonhjelm, I firstly want to indicate that in respect of this particular bill I want to focus particularly on the proposed changes to the arrangements in respect of individual flexibility agreements. This is an area where as a former trade union official I have had some direct experience. These proposals by the government seek to reform the amendments to the individual flexibility arrangements which Labor first introduced in 2009. We introduced those provisions because we understand that flexible work practices can deliver benefits to employees and employers, but there have to be appropriate protections and they have to be applied appropriately.

IFAs should be looked at in the context of history. We note that Labor's Fair Work Act came after the scourge of Work Choices. As a union official at the time of Work Choices, I had direct involvement with Australian workplace agreements, which I considered to be the predecessor of these arrangements. I believe that this government wants to revisit those individual arrangements which they first brought about through the Work Choices legislation.

I think it is worth having a look at history in this area. I think the example of the Spotlight company is particularly instructive. This is a company which operates in the retail industry. In subsequent years, the company eventually saw the light and negotiated a collective agreement with the SDA. This was one of the very first companies which took up the option of Australian workplace agreements. These agreements were pretty horrific. I mention this because I believe that this is the government's real agenda—to go back to a situation where employers are able to dictate ways in which they can get out of the basic award provisions which I have referred to.

If we just want to refresh our memories about the Spotlight AWA, we might recall that there was a huge national controversy about this because this particular AWA sought to remove a whole range of award conditions—rights to overtime, penalty rates and a number of other conditions—in return for a wage increase of $0.02 an hour.

Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

That's not fair!

Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I hear some people asking if that were a fair swap. One might say that if these sorts of changes are introduced by way of agreement at a workplace level that it is up to individuals to decide whether they accept these types of arrangements or reject them. I will come back to this later, but I think this goes to the fact that there is a pretty fundamental power imbalance at work in most places between the employer and the employee. We know from our experience with Work Choices that employers are able to take advantage of that power imbalance which exists.

Let's just have a closer look at this Spotlight agreement, because I think it is informative of the attitude behind this government's desire to take us back to individual bargaining. This particular enterprise agreement was supported by the National Retail Association at the time, which was quite aggressive in its approach. In fact, it held out this particular AWA as something which other employers in the industry should follow the lead of. In fact, they described it as being 'innovative and smart in a tight Labor market'. That is the attitude of employer organisations to this sort of thing.

But what were the award conditions which were varied in this particular situation? I touched on a couple of them, but there were other things as well, such as the right to rest breaks. This particular AWA explicitly called out, in clause 20, the fact that it expressly excluded the operation of a number of award conditions. Rest breaks were one of those. I can assure you, Madam Acting Deputy President, that it is one of those important conditions in the retail industry. One may not be able to put a monetary value on the provision of rest breaks, but when you are on your feet throughout the course of the day and you are working in what is basically a very physical occupation then rest breaks are an important provision. I would be concerned, in the current context before us, that these would be the sorts of conditions which would be vulnerable under a revamped IFA provision.

Going back to the Spotlight agreement, it took away annual leave loading—that is one which can be quantified—but it was expressly excluded under the AWA. Also excluded were public holiday provisions, loadings for working overtime or shiftwork and penalty rates, including for work on public holidays. All of those provisions were excluded from— (Time expired)

Debate adjourned.