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Monday, 23 September 2002
Page: 4663


Senator GEORGE CAMPBELL (6:22 PM) —I must say I was terribly disappointed in Senator Tierney's contribution. Senator Tierney, it is not going to do anything to contribute to your holding your position in the Senate. Malcolm would have been very content indeed to have heard that contribution this evening. The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 is no more than a re-run of the Workplace Relations Amendment Bill 2000, which proposed a prohibition on pattern bargaining and other restrictions on the taking of lawful industrial action. It is nothing but another hypocritical attack by this government on the working men and women of Australia. It is a clear violation of international conventions and merely reveals the depths to which this government will sink to attack the ordinary working people of this nation. The 2000 bill was introduced as the government's response to what was claimed would be an industrial Armageddon in Victoria resulting from enterprise bargaining claims being pursued against a large number of manufacturing companies. The reality was quite different. There was no significant industry-wide industrial action, in spite of agitated predictions to the contrary, and agreements were concluded on an enterprise by enterprise basis, with most industrial action occurring at the enterprise level.

Recent cases have shown that the Australian Industrial Relations Commission is capable of dealing with any instances where unions fail to genuinely try to reach agreement. In the metals case that I just referred to, the commission terminated a number of bargaining periods. In his decision, Justice Munro outlined the current powers of the commission and the issues at the core of this debate. The three key points of Justice Munro's decision were: (1) the commission has the authority to terminate a bargaining period even where the union had terminated that bargaining period and another period had been initiated; (2) a party who is trying to secure agreement with an entire industry or sector cannot take industrial action against negotiating parties that accept their claims to force parties that have rejected their claims to accept the claims; and (3), as Senator Sherry pointed out, a common set of demands for conditions of employment, or for timing negotiation rounds and outcomes, is not sufficient in itself to establish that a negotiating party is not genuinely trying to reach agreement with the counterpart party. Justice Munro also made it clear that common claims and outcomes have a place in the industrial relations system, are not outside the scheme of the act and may be pursued by employers as well as unions. It is interesting to quote a passage from his decision. He said:

It appears that some of the more loudly voiced and caustic criticisms of `pattern bargaining', as practised by unions, are muted or tolerant of corporate practices intended to achieve similar uniformities of negotiating outcomes across different workplaces.

One has to look no further than what has been occurring in the APS in pattern bargaining over the past three or four years— particularly when Mr Reith was the minister. The minister was promoting it and his department were promoting it. Not one agreement throughout the whole of the APS was allowed to pass that was not scrutinised and passed by the department of workplace relations and the minister himself. That is the ultimate form of pattern bargaining that has been practised over the past four or five years. The clear conclusion to be drawn from the decision of Justice Munro is that the commission has the power to exercise this discretion in relation to whether or not a particular set of facts and circumstances in a particular case meets the test of whether a party is genuinely trying to negotiate an agreement. It is simply false to say, as the minister has, that the need for the content of the 2002 bill is supported by the metals case decision. In fact, as I discussed earlier, Justice Munro found the opposite, holding that pursuing an industry-wide campaign was not evidence of a failure to try to reach agreement at the enterprise level, so long as the union was prepared to negotiate with individual employers.

This bill sets out obligations on the first party—usually a union—to meet, confer and respond to proposals made by the other parties. On the surface, these clauses do no more than specify behaviour consistent with negotiating in good faith. However, it needs to be understood that, in the usual situation where it is the union which initiates a bargaining period, there is no obligation on the employer to meet and confer with the union or to consider or respond to proposals made by the union, although the union must be able to demonstrate that it has genuinely tried to reach agreement. As the BHP case of 10 January 2001 showed, an employer is quite free to refuse to negotiate a certified agreement with a union that has initiated a bargaining period. Although the union would be required to meet with the employer and to consider and respond to any of the employer's proposals, there is still no obligation on the employer to consider any proposals from the union.

The amendments concerning the conduct of negotiations ignore the reality that the taking of industrial action is in itself evidence that a union and its members are genuinely trying to reach an agreement. Workers do not lightly take action by which they forfeit their wages. In many cases, such as the BHP case, it is the union which wants an agreement and the employer who does not. This is typical of this government. It demonstrates again its lack of understanding of the nature of the industrial relations system in this country. Neither unions nor employers approach enterprise bargaining with blank minds and empty pieces of paper. Neither group has the resources to do so. The enterprise bargaining process is based on sharing collective knowledge and experience and using this in a cumulative way rather than inventing the wheel on each occasion. Many unions provide model agreements to assist delegates. While these will generally be varied as a result of enterprise negotiations, the model or template provides a useful basis and a starting point for the union and the employer. Employer organisations, of course, use similar measures to assist their members. Meetings to plan and adopt enterprise bargaining strategies are common, as is the production of model agreements and draft clauses. In his contribution, Senator Tierney referred to the Ai Group. The Ai Group has a plethora of model agreements out for employers to follow when they engage in enterprise bargaining.

Sitting suspended from 6.30 p.m. to 7.30 p.m.


Senator GEORGE CAMPBELL —Before the suspension of the sitting for dinner, I was discussing the issue of the way in which both unions and employer organisations prepare model agreements, enterprise bargaining strategies and all sorts of material for their members which in the context could be argued to carry common claims, but it is actually material that is produced to assist the players out in the marketplace to facilitate their negotiations to achieve genuine enterprise agreements at the enterprise level. It is also true that employers, like unions, adopt and campaign around issues of concern and attempt to pursue these through bargaining— for example, in the introduction of performance pay in the mining industry, the abolition of penalty rates in the finance industry and the reductions of pay in the meat industry. It is pure hypocrisy for the Minister for Employment and Workplace Relations and others to support pattern bargaining by employers but to try and outlaw it for employees— to try and swing the pendulum or tip the scales in favour of the employer.

One other area that needs mentioning in regard to pattern bargaining is that of Australian workplace agreements—AWAs— which are another classic example of pattern bargaining and in fact are encouraged by the Employment Advocate, with his promotion of an AWA template. He is so wedded to this process that he would qualify to join the AMWU as a pattern maker! The general practice of employers offering identical AWAs on a take it or leave it basis has been well established and is well known to players in the industry. And it is well known that this approach is facilitated by the Employment Advocate. Genuine negotiations of AWAs with individual workers are in fact a rarity— something that occurs in very rare circumstances these days. It is very much a pattern approach that is undertaken in this particular field.

I want to move on and make some comment about the issue of international conventions. This is a government that is arguing very strongly that others globally should take note of international conventions and international decisions—for example, the Iraqi government in respect of the decisions of the United Nations—but it totally ignores what has been happening internationally in respect of industrial relations. Prohibiting pattern bargaining has not been an issue internationally simply because no other comparable country imposes the types of restrictions on industry-wide and multi-employer bargaining and agreement making that apply in Australia. These restrictions have been the subject of ILO criticism on a number of occasions. The government has ignored these observations as it ignores nearly every other report by international labour organisations. This government must be one of the most isolationist and parochial in Australia's history.

In March 1999, the ILO committee of experts published an observation in response to an ACTU complaint about Australia's breaches of Convention 87 regarding freedom of association and protection of the right to organise. The committee finding, in relation to multi-employer agreements, was as follows:

The Committee notes that by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests.

The effect of prohibiting the pursuit of common claims, as provided for in the bill, would be to reduce enterprise bargaining to a series of completely isolated negotiations, where workers would be unable to use the collectively gained knowledge and experience which comes with participation in their union. Employers would of course not be so inhibited and would be free to pursue approaches in common with other employers in their industry.

In his submission to the inquiry into the 1999 bill, Professor Joe Isaac, a very respected former member of the industrial relations bench, submitted that multi-employer bargaining not only was fairer and more efficient but did not necessarily result in higher outcomes. In his evidence to that hearing he said:

It is difficult to understand the in-principle objection to multi-employer agreements. There may be situations where a number of employers in the same industry prefer to deal collectively with the union and to have, as far as possible, uniform wages and conditions within the industry, while allowing certain variations to meet the circumstances of particular firms. Competition and profitability would then be based on managerial performance.

I might add that one of the most outspoken advocates against pattern bargaining has been the Australian Industry Group. Yet the Australian Industry Group has admitted, in hearings before the committee on several occasions, that it actively pursues pattern bargaining agreements in the building and construction industry. The group's view is that, where it suits it, it will engage in the process and, where it does not suit it, it will not. You cannot have the best of both worlds; you cannot have your cake and eat it too. If you are going to give certain rights and you are going to take advantage of certain rights in one area then you have got to expect others to be able to take advantage of those rights in other areas. The reality is that, if employers are forced to compete on labour costs, the effect is simply to keep driving these down until they reach a floor below which people will not work. The effect of labour cost competition is also to put stress on safety—something of key importance in both building and transport. Recent cases of accidents involving long-distance drivers working for excessive hours demonstrate the result of downward pressure on labour costs.

Over the past decade, the making and pursuit of common claims by unions on employers, including wage claims, have been a general feature of enterprise bargaining in Australia, as it has long been in most industrial economies. The argument that pattern bargaining is a threat to productivity growth is unsustainable, and no evidence has been produced to sustain that argument. There is no evidence to suggest any concordance between the presence of pattern bargaining and the level of unemployment or the productivity growth rate across OECD countries.

I want to briefly mention the question that has been raised about cooling-off periods. We only have to look at the inconsistency of the arguments of the government in a number of these areas. The government is obsessed with industrial action in a period when it is totally unwarranted. The necessity to restrict it is not borne out by the facts. Most strikes in Australia are of short duration these days. In 2001, for example, there were 665 industrial disputes involving 225,700 employees. Of these, 512 disputes involving 86 per cent of employees were for two days or fewer. Only 72 disputes involving 12,100 or 5.5 per cent of the employees lasted for five or more days. The decline in working days lost from industrial disputes has continued, with 16 per cent fewer days lost in 2001 compared to the previous years. These figures clearly demonstrate the worthlessness of this bill. A much more important reform would be to grant the commission the power to order parties to negotiate in good faith. That is embodied in the amendment moved by the Labor Party that calls upon the government to put forward constructive proposals to direct the parties to negotiate in good faith. Our amendment also calls upon the Senate to condemn the government for emasculating the powers of the Australian Industrial Relations Commission and for interfering with its discretion.

I want to briefly talk about the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2000 before I make some concluding remarks about the Workplace Relations Amendment (Genuine Bargaining) Bill 2002. The issue of promoting secret ballots in industrial disputes is not a new one. I think it was first introduced when Tony Street was a minister for industrial relations in the Fraser government back in about 1975-76. It was heralded then as the answer to all the problems in the industrial relations environment. The truth of the matter is that over 25 years it was a provision in the act that was used very rarely and very sparingly, because neither the employers nor the unions, or the workers for that matter, saw any relevance in it in terms of it making a major contribution to the promotion of good industrial relations. You do not solve or create good industrial relations through that process.

The real answer to what the secret ballot bill is about is the response you get when you say, `If it is good enough to have a secret ballot, to turn it on'—to use that expression: to turn on industrial action—`why isn't it good enough to have a secret ballot to turn it off?' The argument is consistently used by the government, by the minister and by people like Senator Tierney that people will be intimidated if you do not have a secret ballot. On the other side of the spectrum, you are quite happy to have workers intimidated when you want to turn industrial action off. Why doesn't that argument hold true in respect of turning off the industrial action? If you are saying that workers will be intimidated by turning it on, by not having a secret ballot, doesn't that equally apply in terms of the arguments of turning it off? The reality is that there are no circumstances in industrial relations that warrant nor justify these two bills. These two bills are not about good industrial relations. They have got nothing to do with improving our industrial relations environment. This bill—the same as every other industrial relations bill that has been brought into this chamber by the government over the past couple years—is about creating a double dissolution trigger so that the government can call an early election when it suits it. (Time expired)