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Monday, 23 September 2002
Page: 4661


Senator TIERNEY (6:08 PM) —I rise to speak on the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002. As Chair of the Senate Employment, Workplace Relations and Education Legislation Committee, I would first like to observe that there was considerable support for these bills at the committee hearings from a very wide range of groups and sectors, including small business, agriculture, manufacturing, service and construction. Not surprisingly, the fundamental opposition came from the union movement. This is disappointing. Despite the fact that Senator Sherry says that these bills are `recycled bills', there are quite a number of significant changes from the last round in 2000.



Senator TIERNEY —Later on, Senator Sherry, I will mention what some of these are. I think the changes are quite reasonable. It is a great pity, given that we have had an evolution of the workplace relations framework under both Labor and Liberal governments over the last 10 years, that some of the very reasonable measures in this latest round of reforms are not accepted by the Labor Party—or the opening speech from Senator Sherry seems to indicate that they will not be accepted. With all the changes over the last 10 years there have been dramatic improvements in productivity in Australia, and these changes offer a chance for this process to continue. On our side, the whole process was of course started by former Minister Reith, who will go down in history as a hero of labour market reform because he was the first minister to really achieve any meaningful gains in the area of reform of the workplace. Senators will recall the major obstacles the ALP placed in his way at that time. When he brought in the reforms initially, Minister Reith said:

The reason the Labor Party does not like it is that they hate the idea of people having agreements which do not allow the unions to tell them what to do.

With the Workplace Relations Amendment (Genuine Bargaining) Bill 2002, we are setting the parameters for bargaining. Enterprise bargaining benefits the Australian economy, improves productivity, improves efficiency in the workplace and also benefits workplace relations by improving the relationship between employers and employees. We must protect enterprise bargaining from union attempts to return bargaining to an industry level. We need further legislative guidance amendments to prevent unions from adopting industry-wide pattern bargaining. Industry-wide pattern bargaining is the antithesis of enterprise bargaining and it subverts the intention of the original act. During our inquiry into these bills, the Ai Group explained the union strategy in 1999-2000 to undertake industry-wide bargaining. They told the committee:

... the CFMEU sent out 3,000 identical bargaining notices and organised industrial action across the industry at a common time in pursuit of a 36-hour week and a 24 per cent wage increase. In manufacturing, the AMWU and the other unions sent out some 1,500 bargaining notices on the same day, and then they sent out notices of protected action in identical terms to hundreds of companies and organised an industry strike.

A number of organisations and individuals have recognised from situations like this that the spirit of the Workplace Relations and Other Legislation Amendment Act 1996 is being subverted by the unions. This is surprising, given that the unions claim to support the move to enterprise agreements. The Department of Employment and Workplace Relations submission underlined this point. It stated:

... the need to make enterprise agreement-making part of the system was endorsed by both major political parties, all major employer associations, the ACTU and the majority of individual unions.

We are now faced with the third attempt at getting this type of bill approved since 1997, yet this is what a number of industry groups and others, including the ALP opposition, have asked for. This rather anomalous situation was summed up by Tony Abbott, the current Minister for Employment and Workplace Relations, in the following terms:

... we are doing precisely that for which the opposition have been calling for several years ... they really do support these provisions, but ... they cannot afford to say so ... to say that they support these provisions would be to concede some reason, some balance and some rationality to a government which on this particular issue they are all too keen to demonise.

This bill is designed to ensure that workplace bargaining is genuine and that pattern bargaining is stopped. If we allow pattern bargaining to continue, the bad old days of extensive strike action could return. Parameters must be set. This bill will provide guidance to the Australian Industrial Relations Commission when it is considering whether or not a party is genuinely trying to reach an agreement with other negotiating parties, particularly in the case of so-called pattern bargaining. This bill will require the commission to satisfy itself as to which bargaining periods are relevant for a particular application to suspend or terminate a bargaining period.

This bill will require the commission to satisfy itself as to which bargaining periods are relevant for a particular application to suspend or terminate a bargaining period. It will allow the commission to declare, when it suspends a bargaining period, that a specified negotiating party is not allowed to initiate a new bargaining period in relation to the specified matters that are to be dealt with by the proposed agreement following the suspension. This bill will empower the commission to order cooling-off periods in respect of protected industrial action in order to facilitate the resolution of the issue in dispute. Cooling-off periods play a vital role in negotiations and they allow negotiations to continue without industrial action.

Senator Sherry was a little disingenuous on this matter when he said we have all of this at the moment. But, of course, it is only under certain conditions. This bill actually liberalises this to make it more workable. At this time the commission can only establish cooling-off periods under restricted circumstances. Currently, there are no direct provisions for cooling-off periods to address cases of stalemate or prolonged industrial action. If direct provisions are not created, we are likely to experience situations where continued industrial action may make negotiations extremely difficult.

Through this legislation we are trying to give the Australian Industrial Relations Commission more authority to stop these industry-wide bargaining attempts so that they can ensure that bargaining is genuine at the workplace level. The bill will stop uncertainty amongst organisations by providing more legislative guidance to the courts. The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 will allow the commission to suspend a bargaining period to allow for a cooling-off period in certain circumstances. By giving the AIRC more power in this way, we are encouraging and assisting negotiations without industrial action. Such a suspension would be beneficial to the negotiations by allowing time to resolve the issues.

Secondly, I would like to speak on the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002. Support is strong for this amendment because it will encourage the Australian work force to increase its involvement in the running of the workplace and will decrease the domination by workplace bullies that occurs sometimes when there is an open ballot. We must allow important workplace decisions to be made by all people in the workplace. Freedom of association is one of the underlying tenets of our democracy. In bringing through the changes in this bill, this underlying parameter of Australian society will be supported.

It was made clear at the inquiries that the most important question in relation to this bill was whether it is an unreasonable obstacle to protected industrial action. The answer to that is no. Let me begin by pointing out that other countries, such as the United Kingdom, Ireland, Germany, Japan and Canada, have secret ballot arrangements. Many union bodies in these countries, despite initial resistance, now support secret ballots as a fair and simple process. Secret ballots, under the support of the Industrial Relations Commission, will protect workers and their jobs and prevent unnecessary strikes by enhancing freedom of choice for workers. The Hon. Tony Abbott summed up the government's position on this bill in the other place on 19 August this year when he said:

... this government believes that there should be no strikes without secret ballots first.

Minister Abbott also said:

Strikes cost jobs, they damage companies, they can damage the reputation of Australia overseas and, most of all, a prolonged strike can take hundreds and hundreds of dollars out of the pay packets, out of the pockets, of vulnerable workers ... That is why the people who will be most affected by any strike action should be given the chance to have a fair, free and secret ballot before any strike action takes place. ... This bill is about freedom.

Such a measure will not create a financial burden because the Commonwealth will cover 80 per cent of the ballot costs. How can the opposition oppose this?

Secret ballots will provide a fair way for workers to express whether they want to take industrial action and they will give workers a genuine chance to put their opinions across. Before any agreement is certified, it must be agreed upon by the majority of employees involved in a secret ballot. At least 40 per cent of eligible voters must participate in the secret ballot and more than 50 per cent of those must be in favour of the proposed industrial action. This bill will stop union officials pushing agendas onto workers that do not concern them and it will stop intimidation by union bullies.

During the inquiry, the Ai Group, as an employer representative, acknowledged the risk of intimidation and peer pressure by unions when it stated:

In the context of a mass meeting it is a fairly intimidatory thing for any individual to stand up at a mass meeting considering a strike and put forward a different point of view to the one that is running that mass meeting.

This bill will ensure that this type of intimidation is stopped. It will provide fairer workplaces and unions by ensuring that only union members who are directly involved in the proposed agreement will be entitled to vote, requiring that union officials be elected through secret ballot and giving the Industrial Relations Commission the power to order a secret ballot as a means of assisting the settlement of an ongoing dispute.

The bill takes into account concerns raised during the previous inquiries; thus it improves on the 2000 bill. The 2000 bill required workplaces to announce the date that industrial action would commence. This bill allows a 30-day period before the commencement of industrial action. It allows applicants to conduct their own ballots, it allows attendance ballots in place of postal ballots and it simplifies the ballot question. By giving the Industrial Relations Commission more power in this way, we are creating a fairer and freer workplace.

Finally, it must be remembered that the key element of this bill is that it ensures that there is no interference with employees' capacity to access industrial action when there is genuine support coming from employees. Both the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 must be passed in order to give the Industrial Relations Commission more power, which in turn will give Australian workers more power. We must stop uncertainty amongst organisations by providing the legislative guidance stated in both of these bills.