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Thursday, 13 February 2003
Page: 11811

Mr McCLELLAND (12:06 PM) —I rise to speak on the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 [No. 2]. The opposition oppose the second reading motion. We think the legislation is overdramatic and is not justified, on the basis of available evidence. Essentially, this legislation seeks to make it mandatory, in each case before protected action occurs, that there be a secret ballot—and a secret ballot through very complex and convoluted procedures. We believe that those procedures are unnecessary and may well, on the one hand, lock in industrial organisations to the taking of industrial action despite negotiations progressing. On the other hand, they may absorb the resources of the Australian Industrial Relations Commission in terms of their main charter—that is, resolving industrial disputes and developing measures to enhance Australia's productive and workplace capacity; and, as is their traditional role, ensuring that is done in a manner that is fair to working Australians.

I will just outline the complexity of the legislation. I appreciate it will be painstaking but I wish to do that for the sake of showing just how painstaking these procedures would be if the bill were passed. Firstly, an employee or union must, if the legislation goes through to the Australian Industrial Relations Commission, apply for an order for a secret ballot to be held. If no union is present, the employee cannot even make an application unless doing so has the support of a prescribed number of employees. If there are fewer than 80 relevant employees, the prescribed number is four. If there are between 80 and 5,000 employees, the prescribed number is five per cent. If there are more than 5,000 employees, the prescribed number is 250. So we move from prescribed numbers to percentages back to prescribed numbers. Unfortunately, the bill does not make clear what constitutes `support' for an application, so again there is fertile ground for litigation in that issue alone. The application must then set out the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action, details of the types of employees who are to be balloted and any details required by the rules, which rules have yet to be made by the government. The application must be accompanied by a notice initiating the bargaining period, particulars accompanying that notice and a declaration that the proposed industrial action does not relate to an objectionable provision. Certain sections of the act relate to that, including section 89A, for instance. Once all this is done, there might be a valid application for a secret ballot and then the commission must give the parties the opportunity to make submissions, again absorbing further resources of the commission.

We are now up to clause 170NBCB, if you can remember that—imagine being an advocate before the commission and referring to clause 170NBCB and then the subclauses of that; this is part of the complexity of presenting arguments. We still have some ground to cover before we reach clause 170NBDE and the various subclauses and subparagraphs of that. But, pressing on, the commission must then satisfy itself that the applicant for the ballot has genuinely tried and is genuinely trying to reach agreement with the employer. It must also consider whether or not the proposed ballot is inconsistent with the object of establishing a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action supporting or advancing claims by employees or organisations of employees and whether or not the applicant has, at any time, contravened the secret ballot provisions of the act—a fertile range of arguments that would bog down the commission and the parties.

If the commission has satisfied itself of all those things, after argument and after reference to these tremendously long sections, it must then frame an order for the ballot. That order has to specify the name of the applicant or agent, the types of employees who are to be balloted, the voting method, the timetable for the ballot, the name of the person authorised by the commission to conduct the ballot and the name of the person authorised by the commission to be an independent adviser for the ballot. All these procedures would, at the very least, on our calculations—even if the commission were able to hear these matters instantaneously when the application was made—take no less than 15 working days. Assuming that mailing would be required with respect to at least anything other than small workplaces, more likely than not you would be looking at a procedure that would take place six to seven weeks ahead of the action occurring, during which time negotiations would of course be ongoing. It is crazy and impractical.

All those complexities that I have mentioned are in the context of existing safeguards contained in the act—firstly, in terms of the commission already having the ability, if requested, to order that a secret ballot occur if the commission thinks that is going to assist in resolving the dispute, and already in terms of those procedures that are contained in the act for protected action to occur in support of a bargaining stance. At the risk of being painstaking again but to emphasise the point, I want to indicate what those procedures are under the current provisions. Firstly, a bargaining period would have to be validly initiated. As part of that, the commission has to be satisfied that the dispute claim is made in accordance with the organisation's rules, which rules themselves must provide for the control of committees of management by members of the organisation—a democratic procedure already being in place. Secondly, employers or employees are required to give at least three days written notice of the nature of the proposed action. Thirdly, the industrial action has to be preceded by an attempt to reach agreement. Fourthly, industrial action by an organisation of employees has to be duly authorised by the organisation's committee of management. Fifthly, the industrial action cannot involve personal injury, wilful or reckless damage to property or the unlawful taking or use of property—things we would agree with. Sixthly, if the Industrial Relations Commission has seen value in ordering a secret ballot of employees, such industrial action has to have been approved by a majority in the ballot—again, referencing this last point to the current powers of the commission.

If you supplemented those procedures with the complexities of these 34-odd pages of legislation and the complexities of those provisions that I initially referred to, they would simply bog the commission down in respect of its primary role of avoiding industrial disputes, assisting the bargaining process and generally fostering a climate of more cooperative industrial relations in the interests of the Australian economy and Australia's working people. Again, to emphasise it: the legislation is quite disproportionate to that which is necessary, given that the commission already has the power if it thinks it is appropriate to direct that a secret ballot occur.

Just to indicate the extent of that disproportionality, I want to refer to a decline in strikes. The government will say that their harsher industrial relations legislation—or more draconian legislation in many respects—has resulted in a decline in strikes. In fact the evidence indicates that, since the accord process in 1983, accelerated more dramatically in 1993 with the enterprise bargaining legislation that was introduced by the former Labor government and progressively with legislation introduced by the government, the rate of industrial disputation has dramatically declined. For instance, ABS data indicates that working days lost due to industrial disputes in the 12 months until October in the years 2000, 2001 and 2002 respectively have been 627,000, 379,000 and 259,000. That is across the entire economy.

A report by Josh Healy, from the National Institute of Labour Studies, has analysed the dramatic decline that is occurring in Australia. He said that the decline in working days lost due to industrial disputes over the 1990s was 43 per cent for Australia, compared with 12 per cent for the US, 30 per cent for the OECD and 42 per cent for the European Union. He said that New Zealand had remarkable results, with a 75 per cent decline. But, aside from New Zealand, Australia is still up there with a rapid decline in the rate of industrial disputation. A number of reasons could be advanced as to why that has occurred. But to put it in its context, Josh Healy said:

This means that an average of just 0.05 working days were lost per employee in 2001—an amount equal to 23 minutes of working time per employee in the year—less than most of us take for lunch on a single working day.

That is the extent of this dramatic industrial disputation that the government continually wants to beat up so that Australians will think that is the mode of operation of trade unions. Those figures show that, in this day and age, industrial disputation is something of last resort rather than of first resort. Indeed, the President of the Australian Industrial Relations Commission stated on 6 February this year:

Viewed in historical terms the level of industrial disputation had never been lower than it was in the 1990's. In 1970 around 550 working days were lost per 1000 employees and in 1980 around 650. During the decade from 1991 to 2000 the highest annual total by far was 240 working days lost in 1991 and in the year 2000 there were just 83 working days lost per thousand employees.

That is an acknowledgment by the President of the Australian Industrial Relations Commission himself. The complexities that I referred to earlier are, as I keep emphasising, totally disproportionate to the ill to be addressed—that is, that no-one likes to see industrial action occurring. It is counterproductive to lose productivity and it is counterproductive for employees to lose pay packets. However, it is a course of last resort, not a course of first resort, and the fallacy in the government's reasoning is that, by bogging down the commission in these complex technical procedures, you are preventing them getting down to their core function of resolving disputes, getting parties the best outcomes and then getting on with a decent and cooperative relationship. That is a point that should be made.

The other point that needs to be made is that this bill focuses on a secret ballot required at the bargaining stage—that is, at the stage where unions are putting in their claims for additional wages, variations in working hours and so forth. But that is not the source of most of the disputation, the disputation which I have indicated is rapidly declining. The greater source of industrial disputation is in fact in respect of managerial policy. Josh Healy also said in his article:

Interestingly, `managerial policy', which includes disputes over terms and conditions of employment and work practices, was the stated cause of 60 per cent of lost working time in 2001. This was well above the amount attributed to wage issues—a relatively meagre four per cent.

That is where industrial disputation is taking place. We have seen that in response to the substantial industrial disputation that occurred in respect of the waterfront dispute in recent years and in respect of BHP's Western Port facility in Hastings, when managerial decisions to restructure work—contracting out and so forth—resulted in a reaction by the work force. Again, on Josh Healy's analysis, these reactions in Australia tend to be short-term protest strikes. This legislation does not address that scenario. It applies it at the technical wage claim stage in respect of the commencement of bargaining periods.

As I have indicated, even if you reject the arguments I have put about this being a disproportionate reaction to the level of disputation, the government still has to explain why the current remedies contained in the legislation do not address the situation. For instance, sections 135 and 136 of the current act already empower the commission to direct that a secret ballot occur if it thinks it is in the overall interests of resolving the dispute. Under section 135 the commission can order such a ballot to occur if it is for the purpose of finding out whether, in relation to a matter, the attitudes of employees whose employment will be the subject of the proposed agreement might help to prevent industrial action or might help the settlement of matters giving rise to a resolution of the dispute. That power, or a power akin to that, has been in the legislation since 1928. Yet, although those powers are in there, that remedy is seldom accessed.

To refer to some figures again: in 1996-97 there were 4,300 applications for a bargaining period—the commencement of the negotiating process for an enterprise agreement. In that year, there were two orders for secret ballots to occur. I will not go through all the years since then, but in 2000-01 there were 6,625 applications for bargaining periods and there was only one order for a secret ballot. Indeed, Western Australia has provisions that are not dissimilar to those proposed by the government. My researchers have not been able to find one instance where an employer accessed that remedy that was provided for under the Western Australian legislation. Indeed, in my discussions with employers, they substantially think this is a non-issue.

There are already safeguards in place for individuals. Firstly, individuals can access the commission under section 136. An individual also has the right to choose whether or not they wish to be in a union. Even then, if they are part of a decision making process and vote against the taking of industrial action, they do not have to take industrial action. If there is any coercion, victimisation or other pressure brought to bear on an individual for that fact, those bringing the pressure or seeking to victimise or coerce them face very serious penalties under the provisions of the Workplace Relations Act.

The reality is that to get workers to go out on strike these days requires very persuasive arguments indeed. There are a number of factors in that. First and foremost—this has not been the subject of research; it is my assessment—families these days are too heavily geared with their mortgages, which are at an unprecedented level in terms of the unaffordability of housing. There was an article in the Sydney Morning Herald on Saturday about that. Housing affordability is now at its lowest level historically. It is more difficult now for an Australian worker to be able to afford a house for their family; it is a constant struggle. With the bank manager drumming his drum, people are almost going to work these days for the bank manager. To lose even a day's pay, when families are so highly geared, can set them back dramatically. There is also the aspect of paying for kids' braces or for them to go on camps, or whatever else it may be.

All those pressures are such that very few Australian workers will simply down tools and take industrial action. For industrial action to be taken, as a matter of practical reality a union must really put its case as to why it is necessary to go to that point. The government would like to characterise Australian industrial relations, and indeed the conduct of trade union officials, according to the archetypical cloth-capped shop steward that we saw on the TV show On the Buses—if you can remember it—where the shop steward would say, `Right lads, out we go!' That simply does not occur now. People are thoughtful about these issues, reluctant to lose income and very reluctant to take industrial action.

The final point that I will make is one I touched on earlier. I recognise that a substantial amount of the cost of the ballot itself will be met by the government, but not the administrative cost. The complexity and expense of administrative time and of general processes associated with the ballot being conducted, such as the communication to members of respective cases and so forth, absorbs a tremendous amount of not only the Australian Industrial Relations Commission's time but also that of the industrial organisation or the trade union. When those matters were considered in Senate inquiries, arguments were made that there is a danger that you will lock in industrial action. If a union goes to the trouble, the difficulty and the expense, and obtains an affirmative vote, they are more likely than not to say, `We have gone through the expense; we have an affirmative vote and we are effectively locked in to the course of action that we are following.' That could be even though, during the following period—which may have been three weeks at a minimum but is more likely to have been six or seven weeks—there is progress in the negotiations and a coming together of the competing positions.

I will refer to a quote from Senator Murray on legislation that was considered in this House earlier in the week. I think he has succinctly and fairly put the proposition. Referring to the availability of remedies currently in the act in sections 135 and 136, he said:

However, the new provisions—

that is, the provisions we are considering today—

pose great dangers of actually escalating conflict, lengthening disputes, and making for more litigation.

Senator Murray referred to submissions to the Senate Employment, Workplace Relations and Education Legislation Committee from Professor Isaac and Professor Ron McCullum, who is now dean of the Sydney University law school. He continued:

The committee heard evidence concerning the poorly designed Western Australian secret ballot laws, forced through their compliant upper house before the Coalition lost control of it. They have been an utter failure.

In short, the provisions of this Schedule add little to industrial democracy and add greatly to impediments to unions to undertake legitimate industrial action, while opening up the prospect of longer disputes and litigation.

This schedule should be opposed outright. It does not add to industrial democracy.

I think Senator Murray is absolutely correct in his analysis. It does not add to industrial democracy. For instance, as a result of provisions in the Workplace Relations Act, trade union rules, as I said earlier, must already contain mechanisms for members of the organisation to control decisions made by management committees of the union. That includes the ability to call meetings or to call into question a decision made, through conducting a plebiscite and so forth. Unions today simply do not, and for that matter cannot, turn up on a workshop floor and say, `All right, we're going out.' They do not do that and, indeed, the ACTU indicated in their submission that their policy is for ballots to be conducted before any industrial action occurs. As a matter of course, many unions these days arrange for that ballot to be a secret ballot. This is something that the ACTU encourages and promotes—but a secret ballot conducted through the procedures of the trade union, not according to the convoluted 34-page document that we are looking at today.

In question time on a number of occasions, the government has said, `Why don't we take a leaf out of Tony Blair's book on these matters.' But comparing the British legislation—for instance, section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992, which is the basis of the British legislation—with what the government is proposing is, quite frankly, like comparing chalk and cheese. All that is required under British legislation is that, at some time before industrial action is taken, members of a trade union are issued with a ballot paper that includes either the question `Are you prepared to take part in strike action?' or the question `Are you prepared to take part in industrial action short of a strike?' That indication is expressed back to the union, which then has the liberty of taking such action as is deemed appropriate in the context of the negotiations. Clearly, if those negotiations are progressing smoothly, no action at all is taken. They still have flexibility.

The Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 [No. 2] is not a mechanism that is consistent with enhanced democratic control of decisions made within trade unions. It is a gross overreaction, and an extremely complex one, that is simply going to bog down the Australian Industrial Relations Commission in technicalities and bog down the resources of trade unions in technicalities at a time when they should really be doing homework on the business structures of the employers with whom they are negotiating. This bill will not enhance existing provisions in the act or procedures that are already mandated by legislation in trade union rules to ensure the democratic control of trade unions by members. For all these reasons, the opposition simply cannot support this bill.