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Tuesday, 4 June 2013
Page: 5033


Ms LEY (Farrer) (12:01): It is a pleasure to be speaking first today on this vague attempt by the government to respond to recommendations of the Fair Work review. Members of the House will recall that the government was mugged by reality when it stacked its panel for the Fair Work review, after promising it would have such a review, and then those individuals discovered the reality of the flaws and failures in the system and made some quite sensible recommendations. The Fair Work Amendment Bill 2013 is supposed to implement the second stage of those recommendations. In fact, it barely touches on them, and it also brings in some other matters that had nothing to do with the Fair Work review recommendations, in relation to workplace bullying. I know the minister will accuse the opposition of going soft on such matters as workplace bullying; of course, that is definitely not the coalition's position, and I will make remarks about that perhaps later today or when further amendments are brought to the House.

We are deeply disappointed that the government have sidelined the bulk of the remaining Fair Work review recommendations. They have used this piece of legislation to grant additional rights to union bosses, with no explanation, and, as I said, respond to a separate report on workplace bullying done by a committee of this parliament. Arguably, matters relating to workplace bullying do not belong in the Fair Work Commission, an organisation straining at the seams with the amount of work that it has been given by the government. The government have allocated, I think, $21 million to assist, but we are just getting one seriously overloaded bureaucracy happening here.

The priorities in the Fair Work Amendment Bill are overwhelmingly not those identified by the review panel. The government got 53 recommendations from its own stacked review panel, and it has not seen fit to advance any of those in this legislation. The first bill contained the non-contentious amendments, making it look as if there was action happening when in fact nothing was really going on. In fact, this bill is quite dishonest. It has now been confirmed that many of the provisions—which were announced with much fanfare—actually do not have any impact at all: for example, arguably those relating to penalty rates. We also noted that the provisions in this bill relating to unpaid no safe job leave reintroduce elements of the Workplace Relations Act, an act hated by the Labor government and torn up in disgust. But they were quite sensible measures. They were designed to protect pregnant workers, and it was confirmed by the trade unions that they had not been picked up and put in the Fair Work legislation.

It is an uncommon and unfortunate theme that we are not getting from the government regulation impact statements when major changes such as this are being made. At the Senate inquiry into this bill, the departmental officers could not provide any real reason why there was no regulation impact statement. In fact, every time departmental officers are asked why there has not been a regulation impact statement on major pieces of legislation that are rushed through, poorly drafted after no consultation with industry or stakeholders, the hapless department officials sit there saying: 'We don't really know. It was considered that there were no grounds for regulation impact statements.' This is coming from the top down, from ministerial offices saying to the department that there is no need for a regulation impact statement. My question to the House is: why not? Why not get it right? What are you afraid of? Why not consult with the people who are affected most?

Given that this bill will affect every employer and employee in Australia, we do believe that we should have had that regulation impact statement. It should have been prepared to objectively assess the costs and benefits of the changes. It should not have proceeded without it. As I said, such a lack of clarity and a rushed bill. We are seeing that all over the place. Knock it up in a hurry, introduce it, tick the boxes, keep the unions happy, perhaps if it is not quite right—and we expect to see this later today or tomorrow—move amendments to your own bill. How messy: move amendments to your own bill, because you did not get it right the first time or the unions were not happy or you did not do exactly what you were supposed to do and so on.

It is absolutely imperative that with this type of legislation we get the balance right. We are very apprehensive towards, in particular in this legislation, a dramatic expansion of the rights for union bosses. We note that the Prime Minister—who was then the Minister for Employment and Workplace Relations—took great pride that her Fair Work Act, enacted in 2008, got the balance right. In fact, in her first press conference as Prime Minister, she said: 'I talked for hours with business leaders, with union leaders, with small business leaders just to make sure we got the balance right.' She repeatedly said that, including as recently as 2012 when she said:

… we built a modern and fair system that has got the balance right.

I guess that the balance is a matter of subjective judgement and I know that members of the government, none of whom are here to talk about their own bill, might argue that the balance is right. But we did hear the Prime Minister say that the status quo then got the balance right. Why then has it become necessary to dramatically increase unions' right of entry?

This bill has brought to 400 the total number of pages of amendments to the Fair Work Act since 2009, when the balance was right. I have a detailed list of the 157 new or extended union rights under the Fair Work Act. The government's desire to appease the unions by picking recommendations from the review, augmenting them, adding other issues and dressing it up as a response to an independent review is pretty awful.

Coalition senators and coalition MPs firmly believe that there are two recommendations in particular that were made by the Fair Work review that should have been in this bill, and they are not. They are key recommendations and they stood out. One was reflected from the High Court's unanimous judgement in the Barclay v Bendigo TAFE case which found that union bosses should not be an untouchable class in the workplace. That was picked up by the Fair Work panel review. But, of course, this revolves around the minister himself, who intervened, using more than $160,000 of taxpayers' money, in a court case to argue for the union bosses against the Bendigo TAFE, a taxpayer funded, educational institution. When you have a ruling from the High Court as strong and clear as that, you would think that you would pick it up and enact it in legislation in this parliament, but it has just been sidelined.

The second recommendation of the Fair Work review that should have been picked up in this particular piece of legislation reflects a promise made by Kevin Rudd when he was opposition leader that the Fair Work Act would not allow the return of 'strike first, talk later'. Arguably, another case, the JJ Richards case, makes it clear that technically the Fair Work Act does allow strike first, talk later; it is not sufficiently clear that it does not. We know the confusion, the disorganisation and the chaos that result in Australian workplaces when that particular action happens. So we would have liked to see those two recommendations that were not even touched included in this legislation.

I touched on the right of entry. We have long been concerned with the Prime Minister's broken promise that there would be no change to union right-of-entry laws, a promise made on the life of the Prime Minister's own mother, in her words. Labor's Forward with Fairness document just before the 2007 election contained this express commitment to retain the existing right of entry provisions: 'We will make sure the current rights-of-entry provisions stay,' the then spokesperson, now Prime Minister, said. 'We understand that entering on the premises of an employer needs to happen in an orderly way and we will keep the right-of-entry provisions.' So, based on these promises, it was rightly expected that the existing right-of-entry provisions would be maintained. We now know this is simply not the case. There has already been a dramatic expansion of the laws relating to union access and we have seen an onslaught of visits.

It was recently reported that the AWU made 156 site visits to BHP's Worsley Alumina site in 2012 and a further 175 in 2011, and the Pluto project experienced more than 200 union site visits in the first 90 days of the act. I wonder what time of year this was—I expect it was in the southern winter and the Western Australian summer. The vast majority of these visits are either a blatant membership fishing expedition or they are designed to intimidate.

How much disruption does that really cause to a workplace? I have some recent experience of this. From my other role in this place as the opposition's spokesperson for child care, I can say that we are seeing a pushing into the workplace of the union United Voice: taking over the shared space of lunchrooms—it is very difficult to find somewhere to sit down and talk in a busy childcare centre—pulling the childcare educators off the floor, insisting that they listen to the message, bullying them into signing up and so on. We have lots of real-world examples where, inappropriately, unions are barging into the workplaces where ordinary people are trying to carry out a day's work. This is not to suggest that unions should not have access to employees; there is no problem with that. This is to suggest that unions should not be able to barge into a workplace, to interrupt what is an important activity on the floor of a childcare centre, in a small business, at a mining centre, everyone downs tools and the union conversation holds sway.

If the initial broken promise about this is not bad enough, we now have before the parliament a bill that would even further expand the right of entry laws. The concerns relating to expanded provisions proposed in this bill are really two. The first concern relates to the default location. If the employer and the union official cannot agree in it being the lunchroom, then what happens? The second concern relates to the employer's liability for travel costs for union officials exercising a right of entry permit in remote locations. We do agree with the sentiment expressed by the Australian Industry Group that this measure is simply an attempt to increase union membership and will not increase productivity. I know the Minister for Employment and Workplace Relations is going to say when he comes into this place, 'Oh no, that is not right, the employer does not have to pay for the relocating of the discussion to an alternative venue'—perhaps because it cannot happen on a mine site—'the union has to pay, the employer does not have to pay'. I think that will be the argument that the minister will bring in here.

We have received briefings that indicate that, while the union might initially pick up the tab, the union will then bill the employer—so ultimately the employer will pay. To avoid any doubt, I would like the minister when he sums up the debate on this bill to make it very clear that, if unions have a right of access to a group of workers in a remote part of Australia and for whatever reasons the public spaces on that work site are not available, or even if they are, it will not be the employer who has to pay for the travel costs, the fares often from the eastern states to Perth and then to the mine site—maybe because it is an urgent matter it involves a charter and thousands of dollars are ticking over—and then also has to pay for the workers to stop work, attend the meeting, travel there and back and so on. That needs to be clarified absolutely.

The plethora of safety issues associated with union access to remote sites includes the fact that infrequent travellers require escorting on all offshore platforms. There is more and more activity in offshore drilling at the moment—they need helicopters for transport, and there is huge distraction. Extra resources are required to be diverted while at the same time the occupier is exposed to significant risk and liability. As we all know, if you work in any remote mining site the amount of safety training you have to do before you even start day one of your job is quite extensive, as it should be, but if union bosses from the eastern states have to be escorted and obviously have not done that training, there are huge additional stresses placed on the employer. We would like to see provisions in the bill that make the employer responsible for travel expenses related to the right of entry. We want to see provisions that make the lunchroom the default meeting location relating to the right of entry opposed.

This bill also picks up on some family-friendly provisions. I think there is a bit of a game being played by the government in talking about provisions that sound as if they do not exist when in reality they often do. I am not going to go into each of these provisions, but there is a strong theme running through them—it runs through everything that the government does when it comes to its Fair Work regime—and that is that employers and employees cannot be trusted to talk to each other. There is an extensive provision here about roster changes. I reflect on my own rural electorate and I think of a small workshop in a town of 2,000 people. Under these provisions, if the employer wants to change the roster of the employee there is a long, complicated discussion process that has to be entered into. The government will probably say that is okay; if they agree then there is not a problem. But you do not need to enshrine all this stuff in legislation. You have to accept that generally, on the floor of most workplaces, sensible discussion ensues. After all, if the employer were to change the roster of the employee and not tell the employee, how ridiculous would that be in the first place, especially in a small business?

I highlight small businesses because the cost to small business of complying with all this stuff is enormous. Remember that even when what you are describing as a process that employers and employees have to go through seems quite reasonable, as it often does, it is not the outcome that is the issue, it is the process—it is the process that kills you because it takes an inordinate amount of time and an inordinate amount of cost and it wears people down. We do recommend that roster change provisions be reworded to provide more clarity and less complexity for the employer.

I started my remarks by talking about workplace bullying, making the point that this legislation picks up a recommendation by the House Standing Standing Committee on Education and Employment in its report on workplace bullying but it has nothing to do with the review into the Fair Work legislation. The Parliamentary Secretary for Disabilities and Carers says it was her committee, so I congratulate her. It is an important subject and I know she would have given it thorough consideration.

No-one in this place does not take workplace bullying seriously. Everyone, in their first job, if they were not bullied themselves just a tiny bit, knows of someone who was. Everyone, when they think of the circumstances of constituents whom they meet on a day-to-day basis or of their adult children whom they talk to, who are often starting out in the workplace, and when they read all the stories knows that it is an issue. But we are disappointed that the government did not decide to deal with the issue in a separate bill to ensure the necessary oversight.

As I have already mentioned, the Fair Work Commission has a wide range of responsibilities, but there is a whole body of workplace health and safety legislation. There is Safe Work Australia, various state regulators and a huge number of acts that deal with workplace health and safety, including workplace bullying, and it would have been much more appropriate for any measures designed to address that issue to come under those particular pieces of legislation.

If we are going to refer to bullying in this bill, one point I do want to note is: what about the bullying that happens when union officials march on to the workplace and bully employees? I mentioned firsthand experience—I cannot say I have witnessed it, but I do get emails every day from all around Australia, from childcare centres and directors. I have talked to many in the workforce who have been directly affected and they have explained how union bosses have marched in and bullied them in the workplace. When we have finished the second reading stage of this bill and moved amendments, I foreshadow that the coalition will be moving amendments to say that the definition of 'bullying' should be extended to include bullying by union officials towards both workers and employers. It is simply inappropriate that a union official takes over the lunch room of a workplace, interrupts the activities of that workplace and then bullies what is often a group of vulnerable and low-paid workers. The stories I have heard in the childcare sector have made my skin crawl.

Not only have union sign-ups not been a precondition of the increased wages that may be being sought by those workers under a separate provision and not only has it not been a requirement that you join a union but the union bosses have said, 'Unless 60 per cent of the workers in this centre join a union, you won't get a look-in.'

The government has been forced to defend that position with some frequently answered questions on the DEEWR website. The minister cannot come out and say any of this; again, the department is having to pick up the slack and actually respond. However, there is a website and some questions and some lame excuses but, out in the real world, you have people from this union barging into the workplace and saying, 'Okay, who's going to be the first to sign up and, unless 60 per cent of your membership signs up, nobody here will be able to apply for the increased wages?' That is not right, it is completely out of order and it should be stopped. We will very vigorously prosecute the amendment that we will move, which says that not only do we accept the measures that the government proposes about workplace bullying but the definition of 'bullying' should be extended to include 'bullying by union officials towards both workers and employees'.

I note that there have been press reports which have suggested that there may be additional amendments moved by the minister to his own legislation that will expand compulsory arbitration. I would make it very clear to the minister that we in the coalition would take a very dim view of him introducing such amendments at a late stage. I do note that this bill has been sent to a House committee and to a Senate committee. The Senate committee has reported; the House committee has not yet reported. It would only be reasonable that the House committee and the Senate committee should have an opportunity to have a look at any new amendments that the minister brings in, particularly in the area of compulsory arbitration.

That would be opening up a whole new front in terms of the Fair Work legislation in this country and it would be totally unreasonable. We have not even been informed that such amendments might take place; we have just read about them. They have not seen the light of day and that is a bit unfortunate.

I want to conclude by highlighting the coalition's policy to improve the Fair Work laws. We do understand the need to protect jobs. We believe in reward for effort. We understand the need to have healthy businesses that employ more people and pay better wages. That is why we will stand up for workers and their employers in a balanced way—because we do know that fairness is a two-way street. Our improvements in the policy are based on providing common-sense solutions to practical industrial relations problems that exist under the Fair Work laws. There have been so many calls for changes to the laws from unions and employers alike.

There will always be people who think we should go further and there will always be people who say we have gone too far and we are trying to scare everyday workers. But these Fair Work laws are comparatively new. It was a sensible proposition for the government to look at them after two years; although they have not paid any attention to the review; but we know that laws can always be improved. They should be reviewed and different points of view should be considered. So I want to restate, as everyone on our side has stated many times, that pay and conditions of workers are safe under the coalition, because we support their workplaces. We do not, as the government does, support the union officials in those workplaces. We do not focus just on the core workers in the workplace who happen to be members of a union—I believe the percentage of union members in Australia is down to 13 or 15 per cent, even though the desperate drive to sign up new members in unions is happening all around us.

Labor is on track to having almost 160 special rights in place just for unions in the Fair Work laws—160 special rights for a group of workers that is 13 per cent of the total workforce in this country. Why should they have a position and a privilege that is not extended to any other worker? Our definition of fairness is not about this small subset of the total workforce; it is about everyone. It is not just about the union bosses; it is about everyone. It is about having a balanced and sound process and policy for everyone. It will fix our most pressing problems in a cautious and prudent way. It embraces common sense and balance. I thank the House.