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Thursday, 20 June 2002
Page: 4096


Mr HATTON (4:45 PM) —Here we are, debating the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002, one of the prodigal children of a former bill that failed in the Senate—the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill, which went down the chute in 1999. What did the government do? Having put that bill forward, having rammed it through this House—as they ram through so many of their bills—it went to the Senate, the Senate committee looked at it, they made a determination in regard to it, there was a vote, it got knocked over. Instead of accepting that, the government chose to break this bill into a number of elements. Instead of seeing it as cognate or one job lot, they probably thought that if they could break it into a series of elements—eight, 10 or 12—they would be able to do two things, one of which was to beef up their legislative program, which is pretty narrow and pretty slim, because they would have eight, 10 or 12 bills to put through instead of one to get knocked over. It is a bit like the Internet. If you want to send stuff from one place to another, maybe it is better to use packet-switching, where you send little bits off at a time and hope they all arrive at the one point and get reassembled. My guess, though, is that when this bill gets shunted through this House shortly we will have a situation where the Senate will have another look at it and they will knock it over again. Why do I think that? Labor's attitude towards this bill is that there is no real difference between the More Jobs, Better Pay bill and aspects of that bill relating to secret ballots, and this bill. I think the Democrats and others in the Senate will probably take the same attitude.

In his second reading speech the minister said that a vast set of changes had been put forward in this bill, that the whole landscape had changed really and that they had even taken up a suggestion by the International Labour Organisation. You would not normally expect that to happen but, when the Treasurer, Mr Costello, is day after day quoting the Hon. P.J. Keating and his arguments from 1990, you know they are fairly desperate and you know that they have got to cast around to try to build their arguments up. In that case, he has chosen an authoritative source. But going to the ILO to seek to try to bolster their argument is very strange for this anti-union, anti-worker government. If you have a look at what is supposed to be so significant in terms of the changes to this bill, the Bills Digest, which I will refer to in a number of places, is very useful. Page 13 deals with the comparison of the bill, and the second point they make relates to the ILO. For an eligible poll, in the previous More Jobs, Better Pay bill you had to have 50 per cent of the work force in an enterprise voting in order for it to be a quorum. They had a talk to the ILO, and the ILO said that the normal quorum is about 40 per cent. So the government have made that change to this bill. Big deal. Is it really substantial? We do not think so.

What is the second change they have made? This one is a bit weird. In order to not leave out people who are not unionised, to allow non-unionised employees to have a bit of a go at the secret ballot, they have introduced some kind of mechanism which really says: `There's no direct representative here. We can't actually go to a union. We have got a series of people who haven't got a single representative. They haven't got a designated agent. How do we find if they actually want to have a secret ballot? We will go and ballot them to find out.' So we have got a ballot in order to have a ballot. That is basically the only other provision, even though it is not fully spelt out within this bill.

So between what was there before and what is here now, the Labor Party have had a look at it and said, effectively: `Sorry, boys. There is no substantial change in regard to this, and our fundamental view, expressed in this House as that original bill was going through and expressed in the Labor Senate majority report, is that this bill, one of the bills sired by the original failed bill, should be given the flick as well.' The core reason is that what this bill seeks is already in the current Workplace Relations Act. There is only one difference in terms of what the government really requires, and that is to make it compulsory to have a ballot before you go to protected action, to make it more difficult to actually deal with solving industrial disputes.

I will start looking at some of the provisions in regard to this by quoting the second reading speech of the Minister for Employment and Workplace Relations and his summation of what this is all about. The summation, the lead-up and the intro to it give you a good indication of just where this government is at and where this minister is at. We know the broader context: four months to actually reconvene a parliament and when we got here virtually no legislation organised—they had to scrabble for almost a month to get some material into the House—but, right at the start, it was flagged by the minister that a major part of the government's preparation for the next election would be an anti-union series of legislative measures. This is but one of them, and I have spoken on a number of others already. The minister said:

A secret ballot is a fair, effective and simple process for determining whether a group of employees at a workplace want to take industrial action.

A simple enough statement. He continues:

It will ensure that the right to protected industrial action is not abused by union officials pushing agendas unrelated to the workers at the workplace concerned.

That is what this bill is about. It is about ensuring that union officials will not mislead people in the workplace and will not try to do things are not really related to workplace concerns. This sort of attitude has got a long history. It is at the very core of the approach of the coalition—not just the coalition now but the coalition in all of its phases and all of its modulations over time, and I will have a bit of a look at that in a moment.

When you go to the core of this in terms of a justification, this is about being anti-union and trying to stop people in the workplace from taking protected action without going through the full process and making sure you have a secret ballot before any protected action can take place. It is about putting inflexibility into the industrial relations system, not trying to make it easier to work or any better. If you turn this around, the government is pushing its agenda of being against unions and trying to typify unions as being those who push and try to lead the work force astray. What do we find when we look at the record of what has been happening? There has been a whole stack of applications for variations to workplace conditions; year after year, members of the work force have indicated that they want to undertake an activity.

A table entitled `Orders for secret ballots and applications to AIRC to initiate bargaining period' appears at page 7 of the Bills Digest and it outlines that, in 1996-97, there were 4,300 applications—which is a lot. But how many orders for secret ballots were there? Mr Deputy Speaker, you would expect that, out of 4,300 applications, a pretty big number would result in secret ballots, given that the Industrial Relations Commission can, at its whim, under section 135 of the act, determine that a secret ballot is necessary in order to determine the attitude of the workers in an enterprise to see whether or not they should go ahead with protected action. You would expect a pretty big number—maybe a quarter of that; maybe just over 1,000 would be a reasonable guess. If you were pretty conservative, you could say there might be only 500. When we look at the table, we find there were two. I hesitate to make a visual gesture in the House, but there were just two secret ballot orders.


Mr Fitzgibbon —You are pointing in the right direction!


Mr HATTON —I am pointing in the right direction; that is true. In the next year, there were 6,613 applications for a bargaining period. The number went up substantially; it tripled. There were actually six orders for secret ballots. When we go through the following years, we find that in 1998-99 there were 5,779 applications, in 1999-2000 there were 9,640 and in 2000-01 the number dropped to 6,625. And how many secret ballots were there? In 1998-99 there was one, in 1999-2000 there were two and in 2000-01 there was just one secret ballot ordered out of 6,625 applications for a bargaining period. What does that tell us? It tells us that the Labor Party's attitude towards this legislation is pretty much on the money. It tells us that the conciliation and arbitration system that has operated in this country since it was set up after the Harvester judgment has actually worked reasonably well, even with all the belting that this government has given it since 1996. It says that the commission has the ability, under section 135, to initiate a secret ballot if it thinks there is any doubt about what the work force think. Under section 136, an employer or a union or a group of employees can ask for a secret ballot to be initiated.

But in the bill before us today, the government's amendment is to completely excise section 136. This is a government of excision. It wants to take lots of things out—not only islands; it also wants to take sections out of the existing legislation to take away the right of employees, unionists and employers to seek to have a secret ballot. Looking at the practice in the industrial relations system and at the comparison, it is startlingly obvious that a secret ballot does not need to be ordered for every one of those applications. What does this government intend instead? What does it say it has to drive at? I quote the minister:

Australia has previously had provisions allowing secret ballots at the federal level—

here is the really important bit—

but they have not been a compulsory precondition to industrial action.

That is the whole point of this bill. I will say it again:

but they have not been a compulsory precondition to industrial action.

This group of compulsive obsessives, or obsessive compulsives, are utterly attached to the notion that if you strangle the whole conciliation process and the whole negotiation process, you can strangle the life out of industrial action—there just will not be any, because their expectation is that workers will never go on strike and they will never take protected action if their real motives, beliefs and understandings can be divined. They think that unions, generally, are not just primarily concerned with the wages and conditions in an enterprise or across enterprises; they are really concerned about other things. What they have found in the secret ballots that have been undertaken is that workers pretty well understand what their terms of employment, wages and conditions are. They pretty well understand what is being put up by the employer. They pretty much understand, too, that in regard to this the Labor Party is standing in defence of all of those employees and unionists who want to have their say in a determination of what their wages and working conditions should be and want to have their say untrammelled by government intervention to make sure that the industrial relations system does not work—because if you cement in inflexibility, it will not work. If you took 9,640 applications for a bargaining period, and if every one of those led to protected action, there would be 9,640 ballots to find out whether you would go ahead. Would 85 per cent of the cost of that be put forward by the Commonwealth? The ACTU is not an organisation that the government are enamoured of. They might have got fairly close with the ILO recently and taken up one of their points, but they are not really close to the ACTU.

The ACTU's position on this is pretty balanced and reasonable. They make a significant point on one key issue: if you look along the government frontbench—of course, it is devoid of members now because question time is over and we have only got a minister at the table—and look right through their backbench, I am sorry to say that it is full of lawyers. You know what they are like and you know what they are up to: they tend to have a legalistic approach, particularly to the question of industrial relations matters. We know what the background of the current minister is; we know what the background of the former minister for workplace relations was; we know that the Prime Minister is a little suburban solicitor. That is his background, and it was the former minister's background, and that tends to narrow their thinking in relation to these issues. The ACTU states:

... this is part of a general thrust by the Government to create a legislative framework in which legal action is the only possible response by employers to unprotected industrial action, rather than encouraging the use of Commission processes to resolve the dispute which has given rise to the industrial action.

That is pretty accurate. The ACTU and its constituent unions are pretty experienced when it comes to industrial relations matters. They are actually supportive of the Industrial Relations Commission. They can work those systems to the benefit of their constituents, and can do so because there is still some room to move. There is still some flexibility and some negotiation and conciliation processes left there. This government does not really want an AIRC. They do not want any action at all. They have a simple belief that the problems will all go away if they just lock it up legally and ensure that action cannot take place. The minister has taken the British examples; he has tried to indicate that this is the best way to go.

I go to the other key point the ACTU makes, which again is fairly balanced. They say that secret ballots really have very little to do with democratic functioning—although so much is made of that within the comments of the minister—and that they have:

... everything to do with restricting the right to strike. Further evidence is provided by the lack of any support for proposals such as compulsory secret postal shareholder votes on issues such as takeovers, or whether or not a company should lock-out its employees.

That is pretty accurate and it is a pretty good argument. Where is the action by this government, anywhere, to ensure shareholder democracy? This is a question in the industrial relations area of `workholder' democracy. The people who have the jobs, who hold them and who work have a right to express their view whether it is orally or in writing through a secret ballot process. But we cannot see the government campaigning hard to impose that on companies. They certainly did not impose it on FAI. They did not impose it on HIH—maybe if they had they might have got a better result in regard to the demise of the HIH insurance business, with all the ramifications since. This government will not lead the charge in terms of holding companies to account within the Australian workplace. They will not hold employers to account. They will not have an even and balanced approach to it; they will just have a partial and ideological one.

This bill has a fair history: going back to 1928, to start with, section 56 of the then act transmuted over time in 1947 and 1956 to section 75 and a couple of other subsections over time. In all of those iterations, the ability of the Industrial Relations Commission to order a secret ballot was underlined by conservative governments. They tried to put more inflexibility into the system. But it takes a Howard conservative government to try to make sure that before any protected action takes place at all you have to have a secret ballot, that you have to have no room to move, that you have to have no flexibility whatsoever, that you have to live in a closeted world, closed in; one where you do not let employers and employees sit down across both sides of the table and allow the AIRC to conciliate the situation. They have no real fundamental understanding of the mechanics and the behaviours within the industrial relations system.

Taking a legalistic approach to this bill fails because it is not real. You would think that the conservative side after so many years might have finally got the message that this bill is ideological, impractical and unreasonable, and directed towards a political outcome rather than a practical outcome. For those reasons, and because it lacks balance, and because it is not sensible, and because it does not advance workplace democracy, we condemn it and we will vote against it.