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Monday, 23 September 2002
Page: 4685


Senator CROSSIN (9:16 PM) —I rise to provide my contribution to the second reading debate on both the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002. Let me say at the outset that certainly these two bills indicate to me just how inconsistent and hypocritical this government's policy is in relation to industrial relations. If you study the content of these two bills, you will find that what the government does on the one hand is completely different from what it is proposing on the other, particularly in the genuine bargaining bill. These bills attempt to tip the scales of fairness in this country even further in favour of the employers and the bosses. These bills ignore the rights of workers to be genuinely represented by their unions and ignore the genuine work that trade unions and union officials try to do on behalf of their members and the workers in this country.

Let us go first of all to the Workplace Relations Amendment (Genuine Bargaining) Bill. This bill has two clear objectives. It intends to make it harder to obtain access to protective bargaining and it proposes that measures be put in place to make the current process even more difficult than it is. The major target of this bill is the form of industry-wide bargaining referred to as pattern bargaining. The bill seeks not to limit genuine bargaining to the extent that the previous two bills did but to change the rules slightly to attempt to have this sort of bargaining in workplaces constrained by the actions of the Australian Industrial Relations Commission. The other objective of this bill is to confer on the Industrial Relations Commission new powers to suspend a bargaining period for a specified time.

The government has twice attempted to put both of these bills through this parliament. This is in fact the third attempt in this parliament. Some would perhaps suggest that it is the third wave. I would have thought a third wave might somehow indicate that the first two bills had been successful and that this was a third attempt to be successful at changing the industrial relations system, but we keep forgetting that this government has not been successful in its two previous attempts in this area of workplace relations.

The government has tried to prevent pattern bargaining and has tried to introduce a cooling-off period. But what occurred on the previous two occasions has now seen the government change its mind and in some ways rearrange the provisions of the genuine bargaining bill, depending on what evidence has been put before a Senate committee, how it now feels it might be able to pursue these bills through this chamber and how it might see itself getting agreement from the Democrats, which will be crucial in these bills being successful this time. The bills that were previously before this chamber obliged the commission to suspend or terminate a bargaining period if certain conditions existed. This bill changes that somewhat, in that it leaves the discretion of the commission intact but suggests or provides guidance to the commission on how this discretion should be exercised.

The other thing that is different is that the bill directs the attention of the Industrial Relations Commission to what the government sees—it is the government's view—to be the objectionable features of pattern bargaining. A distinction needs to be drawn between the previous provisions, in that in the 1999 bill it was proposed that pattern bargaining be limited in some way without exactly defining the term `pattern bargaining'. The 2000 bill defined `pattern bargaining' but went on to say that common claims could not be made—common claims were in fact prevented—across the work force. Both of those bills were not successful in getting through this chamber. In this bill the government asserts that it would not prevent unions pursuing common claims but it would ensure that the unions bargain genuinely at the workplace. The key essential feature, though, of this particular bill is this government's failure to understand that commonality across industries does not always represent a failure to bargain genuinely. We have seen a number of examples highlighting that in the debate this evening.

I turn to what I said at the beginning of my speech about the inconsistency of this government in its policies. We have seen this government push for senior executives in the public service to sign Australian workplace agreements, senior executive contracts, individual contracts or whatever you would like to call them. Not having seen those AWAs, I am sure that each and every one of them would be, if not identical, very similar or have identical provisions. It is interesting that under the legislation that this government introduced after coming into power in 1996 AWAs are in fact secret. They are sent through the Office of the Employment Advocate and they are not publicly exposed or up for public scrutiny. We found in the recent round of estimates this year that employers will now be regulating their own AWAs. So on the one hand we have a bill that seeks to limit genuine bargaining and pattern bargaining and gives the Industrial Relations Commission further powers to explore that, and on the other hand we have a government that is pushing AWAs, which I am absolutely certain would be identical, on its senior executive officers in the public service.

What is crucial to this—and I have not heard any of my colleagues or other senators in this chamber raise this—is that I think a lot of people forget what this government has slowly implemented in relation to higher education over the last couple of years through what has been known as its workplace reform program. I talked about this when the genuine bargaining or pattern bargaining bill was before this parliament two years ago. People should be aware that operational funding was removed from the higher education sector—the 38 universities around this country—back in 1996 when this government came to power. When this government introduced the workplace reform program just under two years ago, that operational funding became available to universities to the tune of about two per cent if universities implemented a workplace reform program. But that meant that the universities in their second round of enterprise bargaining had to commit to at least nine of the 14 criteria that were laid down by this federal government. That is, in order to apply for and be successful in obtaining that two per cent in operational funding, universities had to ensure that at least nine of the 14 criteria that were specified by the government were in any new certified agreements that they were in the process of negotiating. On that happening, the universities then applied for that two per cent. They then had to prove to the Department of Education, Training and Youth Affairs—now DEST, the Department of Education, Science and Training—that they had taken on board nine of the 14 criteria. It did not matter which of the 14, but there was a specification that at least nine of the 14 criteria had to be in that enterprise agreement. If that is not in one form or another pattern bargaining then I fail to be able to say what is.

There is no provision in the bill before us that prevents this federal government from embarking on that process or that empowers the Industrial Relations Commission to examine that sort of requirement by a government such as the federal government. There may well have been a commonality in claims, but there certainly had to be—and it was mandated that there had to be—common outcomes. Every university, if they wanted to get this funding, had to pick up nine of the 14 criteria. In other words, there was a third party intervening in this genuine or pattern bargaining. There is no provision in this bill, though, to disallow that or to ensure that that cannot happen in the future.

The bill before us currently allows the Industrial Relations Commission to suspend or terminate a bargaining period if it is satisfied that the parties are not genuinely trying to reach agreement. The Industrial Relations Commission already has the power to do that. What it must do under this bill, though, is consider whether the conduct of the organisations shows an intention to reach an agreement. As I said, this bill does nothing to improve the current system. This bill changes the situation; it changes the landscape for terminating a bargaining period. It provides the Industrial Relations Commission with greater powers in order to do that. This bill is misguided and unnecessary. It focuses on limiting and restricting action rather than on facilitating genuine bargaining by, for example, reinstating the need for the Industrial Relations Commission to order the parties to bargain in good faith. There is no suggestion that this bill provides a positive path to resolving any conflict or removing any obstruction to bargaining in good faith on the part of either party. As a trade union official, I have seen many examples where the employer has put obstacles in the way to prevent genuine bargaining from occurring.

Negotiation in genuine or pattern bargaining arrangements in this country is sometimes required. There is a degree of commonality across industries, but that does not mean that there is an absence of genuine bargaining, and that is a key issue that this government fails to understand. Senator Hogg talked about what happens in the retail industry; let us focus on nursing homes around this country. There is an understanding across the industry that what you do in one nursing home would be similar to the requirements you would need in another nursing home, regardless of the state or territory where it is situated. The child-care industry is another similar example, or even the contract cleaning industry, where you would have a union trying to negotiate wage increases and improvements in conditions for these people across a range of industries and a range of different working conditions— casual, part time, contract or even permanent.

Therefore, it does make a lot of sense that there be some form of pattern bargaining— there is a common claim and there would be, to some degree, common outcomes. Again, it does not mean that there would be a lack of intent to genuinely bargain or a lack of goodwill on behalf of the trade union members and officials to ensure that you could get the best possible outcome not only for the people you represent but for that industry. This government continues to confuse the issue of commonality across industries with a lack of genuine will to achieve a good outcome.

These bills refuse to permit or recognise that the Industrial Relations Commission needs to have its powers reinstated to ensure that the parties bargain in good faith, rather than the narrow focus of this bill, which is that of terminating industrial action and the bargaining period when it considers that the actions of the parties may be questionable. It is a requirement in this bill that sees negotiations in this country proceeding in a fairly negative way, rather than providing a positive and broader suggestion that would give the commission powers to instruct that parties bargain in good faith and actually improve the negotiations and outcomes of that workplace.

In the few minutes I have left I want to talk about the bill relating to the conduct of secret ballots. There seems to be a misunderstanding and a genuine intent on the part of the government to perpetuate the myth that somehow industrial action is taken quite easily in workplaces, without much consideration of the impact on either the workers or the workplace, that it is taken without much thought and that somehow it is not taken seriously but at a moment's notice in order to pursue a claim. It is all bound up in the myth that this government wants to perpetuate about trade unions, their image in society and their role.

In the 10 years or more that I worked for a trade union, I never found that putting to members the suggestion that industrial action be taken was easy. It is not the first course of action that you usually take and, in fact, my experience is that you avoid it at all costs, particularly when we are talking about service industries. I gave the examples before of the child-care industry, education and nursing. Whether it be nursing homes or other services in the private or public sector, they are very good examples of industries where people always put their clients first when having to decide whether to pursue a claim with industrial action. In the education industry, I had at times heated discussions with members at workplace meetings about the fact that members always put their clients first. They always talk about the impact that industrial action would have on the kids in their class and the parents who would need to take a day off work to mind their kids. Nurses usually do not want to take industrial action because of the impact that it would have on the patients and the clients in the workplace.

So it is not an easy decision for workers to make that choice, and nor has it been easy under this government. In order to take industrial action under this government you actually have to provide the commission with a notice period. You have to let them know that you are now starting a bargaining period, and that is a process that you must go through. Then, if you want to take industrial action, you need to give the commission notice—I think it is three days notice—that that is the kind of action you are planning to take. So there is already a lot of paperwork bound up in notifying the commission that industrial action will be taking place. This bill requires that somewhere in all of this there will now be a long, convoluted and complicated paperwork process whereby you will now have to make application to the commission to conduct a secret ballot. That ballot would be a prerequisite for gaining authorisation from the commission to take a subsequent protective industrial action.

In finishing, I want to make one comment very quickly. The commission must consider an application for a secret ballot within two days. In the Northern Territory, we do not have a full-time commissioner—that has been taken away under this government. We only have commissioners who fly in and out at request. So the two days for us in the Northern Territory would be totally impractical. But, of course, this is another bill that creates a complicated procedure. This is another bill that is unfair and unnecessary. The commissioner already has the power to suggest that secret ballots occur, if necessary. (Time expired)