Mr McCLELLAND (10:06 PM) —I support the second reading amendment moved by the shadow minister for industrial relations. This Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 is unique in that, probably for the first time in Australia's history, the government has stepped a long way ahead of what employers want. For instance, the Business Council of Australia has said that, in many areas, this bill goes much further than what is required to achieve the government's philosophical objectives—or, more specifically, the personal ambitions of the Minister for Employment, Workplace Relations and Small Business. Underneath all of these proposals, one cannot ignore those personal ambitions; otherwise, there is no logic in what is being proposed. The bill is a fundamental assault on the living standards of ordinary Australians. The terms and conditions of their employment will be undermined, and their livelihoods will be made more insecure.

We have had a uniquely Australian system of industrial relations that has existed since the turn of this century. The Conciliation and Arbitration Act 1904 was one of the first pieces of legislation in our parliament. It arose out of massive industrial unrest in the 1890s when those involved in industry, representing both labour and capital, saw the tremendous devastation, both economic and social, that industrial unrest had. So our constitutional founders said, `Something has to be done about this. Rather than having Australians fighting Australians, let's bring together rationality and calm arguments and establish a tribunal where both sides can come together and put their arguments and they can be determined on their merits.' So for the best part of 100 years we have had a uniquely Australian, rational, calm and considered industrial framework to address the very complex structural changes that have taken place in just about every Western economy as we approach the year 2000. We have been able to have some pride in this uniquely Australian arrangement.

There have been very significant productivity gains achieved as a result of that system. Through the 1980s and 1990s there were very significant structural efficiency changes and productivity improvements. Indeed, in a number of national wage cases, it was determined that pay rises could not be obtained until the commission was satisfied that those efficiencies and those structural changes were made. But they were done in a cooperative fashion. Workers had the opportunity to be heard with respect to each instance where their entitlements were being changed. They had the opportunity to put before an impartial umpire their argument as to how it was going to affect them. The umpire—being trained in economics and/or industrial relations—considering the effect that those changes would have in enhancing productivity and enhancing the economic benefit, was able to balance those considerations against the effect on workers' lives and their families.

In fact, the member for Mitchell perhaps gave the best endorsement of that system when he referred to a major report of the Productivity Commission which referred to the significant productivity gains in the early 1990s that occurred under this system. The Productivity Commission found that those productivity enhancements which occurred at that time have been a significant factor in underpinning Australia's economic growth. I remind all members of the House that those significant reforms were obtained in an atmosphere of cooperation, consultation and not the confrontation that this government is about.

We could be enthusiastic about those results. When this government came to power there was over four per cent economic growth—the fastest growth in any of the OECD nations—which was based on sound productivity improvements. That growth tailed off for a while as a result of the severe budget cuts of this government but is now picking up due to the underlying strength of those productivity improvements that occurred throughout the 1990s. I do not think anyone on the other side would be foolhardy enough to say that that fundamental structural reform necessary to achieve such a high rate of productivity improvement could be achieved in the short duration of their government. It is as a result of at least a decade of hard work on the part of workers and employers and their representatives, both at employer level and at worker level through trade unions.

I refer again to the effect of the personal ambitions of the Minister for Employment, Workplace Relations and Small Business. What he is about is undercutting and undermining the conditions of employment of Australian workers without giving them the opportunity for properly venting their arguments and properly expressing their concerns. In the 1996 Workplace Relations Act, awards were stripped back by legislative prescription to 20 core matters. In that stripping back exercise, hard fought and fundamental conditions were lost, perhaps the most significant of which were the redundancy and retrenchment provisions which came out of the 1984 termination change in redundancy cases before the Australian Industrial Relations Commission. Those provisions required employers to consult with their workers before introducing significant technological change that was likely to lead to redundancy and before attempting to redeploy workers or find alternative employment for them. That requirement is fundamental to the security of not only workers but also workers' families, and was stripped by the 1996 amendments. These amendments go even further. The minister is proposing to further strip back awards. Workers are going to lose such things as long service leave. The requirement to receive notice of termination of employment will be removed. The requirement for the keeping of employees' time records will be removed as will relevant superannuation provisions.

What is the significance of awards being stripped back? It is very significant because awards constitute the negotiating base for further improvement, whether that be through negotiation of a certified agreement or an Australian workplace agreement. If in the course of negotiations—as inevitably occurs—the employer says to the worker or the worker's representative, `I'm not quite happy with all this. I have discussed matters with other people who are prepared to cop lesser conditions. But if I don't accept your demands what are you going to do about it?' all the employee has to fall back on is awards that have been gutted by the Minister for Employment, Workplace Relations and Small Business through legislative prescription. This bill fundamentally undercuts the terms and conditions of Australian workers. Indeed, Australian workers will not even get minimum safety net pay rises unless their awards have been gutted. So, no matter the timetable of the Industrial Relations Commission, unless and until their awards are gutted, they will not even be considered for a pay rise.

With the passing of this legislation, employees will be working in an environment where they will not be able to achieve their additional benefits through the process previously available to them of presenting their arguments to the Australian Industrial Relations Commission. Instead, they will be obliged to confront their employers to negotiate, either through representatives or individually, to improve themselves. After the 1996 act, workers had one arm tied behind their back. If this bill goes forward, they will be forced to negotiate with both arms tied behind their back.

In theory, yes, it is recognised that workers can negotiate, but the reality is otherwise. One recalls that, under the former government's provisions, all workplace negotiation was carried out in an atmosphere where the commission had a specific power in the legislation to compel the parties to negotiate in good faith: to properly exchange information, not to undermine the negotiating position of the other side, not to withdraw from offers that had been put and, of course, to genuinely attempt to reach an agreement. Indeed, most other Western countries have similar provisions in their industrial relations framework.

But that has gone, the ability for the commission to direct parties to negotiate in good faith has gone, and we have been left with the law of the jungle. Workers will face almost insurmountable hurdles in achieving an improvement in their conditions. If changes are proposed to work practices, perhaps through technological change, or there is the prospect of dismissal or retrenchment and the workers want to stop work and meet for half an hour, 15 minutes or whatever to consider what is going on, section 187AA of the proposed act provides that they will be docked—and not just the 15 minutes, half an hour or hour of the duration of the meeting, but the employer will be committing an offence if it does not deduct the entirety of the worker's pay.

So Peter Reith, irrespective of the competing merits of the reason for that stoppage, is intervening in each and every instance and saying, `Hit these workers, kick into them for the full day's pay, irrespective of the length of the stoppage.' That is quite clearly contrary to principles in many cases which say that an employer or a party to a dispute cannot itself determine the damage arising from a short-term stoppage. But this minister is arrogant enough to step in and impose penalties for not doing precisely that.

So, with it being as difficult as it will be to consider changes in the workplace, what happens then? The minister will say, `But there's a right to take industrial action, there's a right to strike. All you have to do is go through a ballot, give notice of what you are intending to do and, if your members agree, you then can take industrial action.' But many commentators have analysed these provisions. They have been found to be bureaucratic and, quite frankly, they are a nightmare. They involve ritualistic incantations more than any rational procedure. At best, it will take a month to get these procedures in order, more likely six weeks. Even then they will be open to many technical challenges on the way, as we have seen with many ballots in this area or in respect of other organisations.

The reality is that the secret ballot provisions will have a nullifying effect and make industrial action all bar irrelevant; they will make all industrial action virtually illegal. If it is not illegal, workers will be locked in, a month away from the dispute, to the course of action they propose. They will not be able to consider any compromises and they will not be able to revise what they plan because, if they do, they will have to go back to the drawing board and start the month-long process once again.

But looking at the concept of protected action, which again has very many technical requirements to it in the context of this bureaucratic procedure about secret ballots, we can see many other draconian provisions. Amendments proposed to section 127 of the act, which enables the commission to make `no strike' orders, also show a much greater tightening of the law against the interests of workers and their right to take action to pursue or protect the terms and conditions of their employment. The amendments mean that, if the case cannot be heard and determined within 48 hours, the commission then is required to make orders, unless the workers can discharge an onus of proof that it will cause any undue prejudice to them. That reversal of the onus of proof significantly changes what applies in just about any area of the law where the applicant seeking an order must prove their case.

In addition, the commission will not be able to consider the merits of the case as it has done in numerous cases, such as Coal and Allied Operations Pty Ltd v. AMWU. There, clearly what the employer was doing was considered to be provocative. Indeed, proposed section 127(1A) of the act will require the commission to outlaw an industrial stoppage if one has occurred in the previous three months and it is `reasonably possible'—as stated in the proposed legislation—that further unprotected action will occur. So the commission is required to make these orders, even though it does not know the nature of the proposed action, if action is contemplated. So the framing of an order will be in a virtual vacuum. This is quite contrary to accepted law where, if a court is making any order which exposes an individual or an organisation to a penalty, and if they are in contempt of that order, the order has to be precisely framed and directed and targeted at specific conduct.

In addition, because of the minister's contempt for the Federal Court after it hit him over the head on a number of occasions—most notably in the waterfront dispute last year, even though the High Court endorsed the decision of the Federal Court of Australia—it is this minister's intent to discredit the Federal Court by proposing that these orders now be extended to state supreme courts. But both the Supreme Court and the Federal Court in applying this legislation will be required to impose these no strike orders regardless of considerations of balance of convenience. Indeed, they will be required to make interim orders if they are unable to resolve the matters promptly. The whole emphasis of these no strike orders is left very much at the hands of the employer, irrespective of the number of instances where the court has found that the employer has been responsible for the disruption occurring.

There are many areas that this legislation seeks to further undermine. Even if all these procedures are gone through and by some miracle a reasonable certified agreement is achieved, as a result of proposed section 170MX, it can be undermined by the employers picking off individual workers and entering into individual agreements to specifically exclude the operation of those certified agreements. If a worker is concerned that their conditions of employment are being undermined because other employees are being employed at lesser rates of pay—making it more likely that, if they do not compromise, they will be the first on the unemployment queue—and they wish to call in their union, they will first have to face the reality of sticking their head on the chopping block. A union will not be able to come into a workplace unless they receive a specific invitation from one of their members and, even then, the union will not be able to inspect any document other than a document relating to one of their union members.

There are many other draconian measures in this bill. For instance, there will now be a requirement that employers not allow their workplaces to become, as the legislation defines, closed shops. Is that 100 per cent union membership? No, it is just over half at 60 per cent. So employers have a positive obligation not to allow their workplaces to have more than 60 per cent union membership. Indeed, to achieve that, they are allowed to victimise their workers with impunity for their union membership.

There are many other areas which cause alarm and concern such as the right of independent contractors to seek a review of unfair and unconscionable contracts will be removed, the right of workers to seek redress for unfair dismissal will be further watered down and the automatic flow-on of terms and conditions of employment in the event of transmission of business will now be removed. This legislation is—as a result of one man's personal ambitions—an unprecedented assault on the terms and conditions of employment of ordinary Australian workers and their families. (Time expired)