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Wednesday, 16 October 1996
Page: 4244


Senator MURRAY(12.22 p.m.) —Possibly no issue is guaranteed to get a unionist and an employer hotter under the collar faster than the prospect of changes to workplace relations. I make that statement with some confidence, having spent the first seven weeks of my time as a senator sitting on the Senate committee inquiring into this bill.

That committee proved to be an incredibly valuable experience. For anyone with an open mind and the interests of our society at heart, it provided a conduit for concerned unions, business and community groups—and a wide range of concerned workers and individuals—to participate in Senate decision making on a vitally important piece of legislation.

The Democrats approached the committee process with an open mind, with a genuine desire to identify the strengths and weaknesses of the current system and to make recommendations which improve the current act and the proposed bill. In analysing the evidence, we started from three basic principles already alluded to by Senator Kernot. They were support for a strong award system, support for an independent umpire in the Australian Industrial Relations Commission and support for John Howard's pre-election commitment that no worker be made worse off as a result of the government's reforms. From those principles and based on that evidence, I submitted a supplementary report to the Senate committee report outlining the Democrats' response to the workplace relations bill.

It was these recommendations which we carried into our consultations with the Minister for Industrial Relations, Peter Reith. They are the recommendations which I believe will, if accepted, ensure that an unfair and unbalanced workplace relations bill becomes a positive and evolutionary piece of reform legislation worthy of the support of the Senate.

As Senator Kernot has said, our discussions with the government do not preclude a full debate of the bill in the committee stage in the Senate. Some senators in the second reading debate, out of inexperience, inadequacy or irrelevancy, have been motivated to question this consultative process. We felt that private consultations with the government have been essential to permit open and frank dialogue with them designed to overcome the many conflicts that arise from our often opposing philosophies. I can say that, after over 45 hours of meetings over eight weeks, we have comprehensively canvassed all major elements of the bill. The outcome of this consultation and the amendments which we expect to flow from it will be fully disclosed when they are finalised before the committee debate commences.

I want to briefly outline the 10 most essential ingredients for a bill to be passed by this Senate with Democrat support. The first key principle is a fair, up-to-date, enforceable and user-friendly award system. The award system must be capable of covering the essential elements of the employment relationship. In areas like public sector employment, this should be able to take the form of a paid rates award covering all conditions of employment and the actual rates of pay.

We support the strengthening of the award modernisation process commenced by the previous Labor government. The process in this bill is more effective than Labor's section 150A process. We support a process that will lead to awards which are easier to understand and easiest to apply. The government has put up a model of award modernisation and simplification which we believe at this stage is too draconian. It appears to leave out many matters which are necessary for the effective operation of awards. Because the section 89A list of allowable award matters also acts as a limiter on the arbitration powers of the commission, it also fails to ensure that the commission can intervene to correct employment conditions which are harsh or unjust.

This leads to the second key Democrat principle—maintaining the central role of the AIRC as the umpire and watchdog. This is particularly important in the vetting of Australian workplace agreements. Workers, particularly the two-thirds of workers not represented by unions, need to know that they are not being dudded by their industrial arrangements. Every conservative state but Victoria has provided pre-approval vetting of workplace agreements, and this bill should also do so. The fact that the bill as it stands does not do that is one of the worst failings of Mr Reith's package.

The president of the Victorian Employee Relations Commission has been very critical of the lack of vetting of agreements under her act. Many employees, she argues, believe that agreements which have been lodged with the commission have been approved by it when this is not the case at all. As a result, many employees end up accepting substandard conditions in the mistaken belief that they have been approved. Mr Reith's bill, requiring AWAs to be merely lodged with the employment advocate, would result in similar misunderstandings.

Our third key principle is providing an appropriate interchange between the state and federal systems. The Democrats have in the past supported the fast-track arrangements for employees to move from the substandard Victorian system to the federal industrial relations system. That process of transfer of workers is now almost complete and should be allowed to conclude. The fast-track provisions also included the ability to obtain interim federal awards for pre-election where state award coverage was threatened. These provisions also remain of value.

The bill as its stands seeks to not just appeal these provisions but to allow state agreements to override federal awards. These provisions create major problems for the Democrats, as was outlined in the speech by my colleague Senator Allison.

Our fourth area of concern is the ability of unions to organise effectively and responsibly. This bill contains a range of anti-union provisions which will make this much more difficult. The proposals to do away with the conveniently belong rule and open up union coverage—to severely restrict union rights to enter and inspect workplaces—will make life extremely difficult for unions.

Industrial action could dramatically increase as unions try to prove how hairy chested they are as they seek to poach members off each other. Combined with the proposals to set up enterprise branches, the confusing disamalgamation provisions and the open-ended allowance of new unions to open up, union officials can expect to be tied up in legal wrangling in the courts for years as a result of this bill.

The Democrats support freedom of association and the removal of compulsory unionism, but an orderly conduct of trade union affairs remains an essential element of a workable industrial relations system in Australia. In the committee stage we will be seeking a fairer balance for the rights of trade unions.

The fifth key principle is the establishment of a decent no disadvantage test for AWAs and certified agreements to ensure that workers are not worse off as a result of entering into agreements. We believe that such a test must have three elements. It must firstly ensure that the conditions in the agreement, considered as a whole, are not inferior to the conditions provided in the award. The test is the one currently applied to certified agreements.

It must secondly ensure that the workers have genuinely agreed to the agreement. This goes further than the government's proposed very narrow test of looking at whether the agreement was entered into under duress. It looks at the whole negotiating process instead. It must thirdly not discriminate against or unfairly exclude different classes of workers. The special interests of disadvantaged workers should be taken into account.

The sixth key principle the Democrats believe must be reflected in the legislation is the protection of particular groups of workers with special needs. I would list three groups of workers—part-timers, juniors and independent contractors. Awards should not be allowed to restrict access to part-time employment to suit the whim of trade union officials. Quotas, minimum hours which are set too high and maximum hours which are set too low all act to do this and should be taken out of awards.

Provisions which would significantly improve the lot of part-time workers—the guarantee of regularity of hours and pro rata entitlements—should be required in all awards and agreements by the legislation. That way we can prevent the casualisation of part-time employment.

In relation to young workers, the Democrats in 1993 supported the insertion of the provision in the current act giving the parties three years to eliminate junior rates in awards. It remains, in our view, a fundamental unfairness that a 15-year-old worker can be paid just half the salary of a 21-year-old, working side by side and doing exactly the same work. We believe that junior wages should be replaced by wages rates determined on the basis of skills, schooling, experience and work value under the supervision of the Industrial Relations Commission. My colleague Senator Stott Despoja has already outlined our views on this.

In relation to independent contractors, the Democrats believe that there should be access to a low cost dispute resolution process, allowing contractors and other small businesses to challenge unfair contracts. Such a jurisdiction could be modelled on the provisions in the New South Wales and Queensland acts—inserted, I might add, by conservative governments. The prospect of repealing the provisions in the Industrial Relations Act for independent contractors and replacing them with nothing but the common law is, in my view, simply bad policy.

The seventh key principle is enforcement. The Democrats believe that the flip side of allowing responsible unions to organise without undue restriction is that irresponsible unionism, irresponsible industrial action, is subject to appropriate and effective directions. The commission does now have the power to make orders, but too often unions have ignored commission orders. The Democrats believe that the powers of enforcement of AIRC orders need to be strengthened.

We are also prepared to review the operation of current secondary boycott provisions inserted three years ago to ensure that they are working effectively. In doing so, we would always insist that the enforcement provisions properly balance the commercial considerations of the employer and the industrial considerations of the dispute, particularly boycotts that are essentially primary in nature. We will oppose the extension of secondary boycott provisions to cover consumer and environmental boycotts and primary boycotts. To pick up such provisions in the Trade Practices Act or the Industrial Relations Act and to threaten environmental protesters or consumer lobbyists with injunctions, contempt of court and civil damages is, in our view, a draconian restriction on the right to peaceful protest and must be opposed.

The eighth key principle is ensuring that the industrial relations system is responsive to the needs of small business. I have already spoken about the need to put some teeth into the modernisation of the award system. Given that the majority of small businesses rely on the award system for key information about the labour market, this is vitally important. But I think we should also be encouraging small business to improve their workplace relations and arrangements through formalised but low cost enterprise bargaining. Small businesses wanting to negotiate an agreement at present face high potential costs engaging consultants or employer bodies to assist them.

The absence of unions from this sector—90 per cent of small business employees are not in unions, just as 70 per cent of small businesses are not in employer organisations—means deals are often done in an information vacuum to the detriment of both parties. The Democrats believe that a pro-active employment advocate, geared specifically to the needs of this growing non-unionised sector, could play a major role in encouraging and mediating quality enterprise agreements for small business.

The ninth key principle, also important to small business, is reform of unfair dismissals. The Democrats support the thrust of the government's legislation, provided the government guarantees that the system will still be open to Victorian employees. There are only a few minor technical issues which we will deal with in the committee stage.

The tenth and final principle is ensuring that the bill improves the balance between work and family responsibilities. The overall package of principles I have outlined will go some way to achieving this, but more pro-active measures should also be enacted to ensure that this important object of the bill actually means something. This we believe should be developed as an effective role of the employment advocate.

The Democrats will be proposing a number of amendments in the committee stage. These are still being developed in discussions with the government, the Department of Industrial Relations, the ACTU, the ACCI and others. We aim to ensure, through our consultations with government and through our amendments, that the bill is fair and balanced while moving reform of industrial relations and workplace practices forward.

We want to ensure that the capacity for productivity improvement is maximised by this bill, while also ensuring that workers and their families are adequately protected. That balancing act is not an easy one. I do not expect to win any popularity contests by attempting it. My aim, and the aim of the Democrats, is to ensure that the review of this legislation is governed by good policy and practicality, not by ideology or political grandstanding. I am confident that the result of the committee stage review by the Senate will be a much fairer and more workable bill than the one presently before us.