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Tuesday, 24 September 2002
Page: 4762


Senator WONG (5:36 PM) —The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 seek to amend the Workplace Relations Act, and I particularly want to focus my remarks on what has been named the genuine bargaining bill. Mr Tanner in the other place described the title of the bill as `Orwellian', because it really is not a bill about genuine bargaining. Rather, it is properly construed as a bill designed to weight aspects of this legislation, and the system of enterprise bargaining which is underpinned by this legislation, against workers and their unions. This bill reflects the government's aversion to the role of the Industrial Relations Commission as the independent umpire and a desire to create a system that advantages one side of the employment relationship over the other. It is not a bill that seeks to encourage genuine bargaining.

This government is not interested in genuine bargaining. If it were, it would have supported the amendments moved by the opposition in the other place which sought to include provisions ensuring that the parties in the bargaining process bargained in good faith. Surely this is not a radical concept. If this government were genuinely interested in enterprise bargaining and ensuring effective outcomes, surely it would support Labor's amendments seeking to ensure that the parties to the employment relationship bargain in good faith. If it were interested in effective outcomes, it would do this. However, it is more interested in a take it or leave it approach to enterprise bargaining. It should be noted that there is currently nothing in the substantive legislation which requires parties to act in good faith through the bargaining process. There is nothing in the current act, nor in either of the bills proposed, to prevent an employer from simply refusing to meet and confer with a union or consider and respond to that union's proposals, regardless of whether or not those proposals may have merit. Even if the employer does this, under this legislation it is still incumbent upon the union to demonstrate that it is genuinely trying to reach an agreement with the other negotiating parties. There is nothing in the current act which requires the employer or the union to negotiate in good faith, nor does the current act require the employer to even meet with the union. It appears that the government's view of this approach to bargaining is that this arrangement is fair enough.

It is against this legislative backdrop that the government seeks to impose further handicaps upon workers and their unions in the bargaining process. We should be clear about what precisely the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 aims to do. As honourable senators would be aware, the act sets out a process whereby the industrial parties may take protected action during a bargaining period. Under the terms of the act, it is only during the period of bargaining, as defined by the legislation, that the industrial parties—particularly trade unions—are protected from sanctions, both in the common law and under the act, for any action taken. If the bargaining period is terminated or suspended, that protection is removed. With this legislation, the government is seeking to make it easier for the bargaining period to be terminated or suspended—that is, to make it easier for unions, in particular, to be subject to legal sanctions in relation to any action that may be taken. It can be properly construed as an increased fetter on the rights of workers and their unions to take action in the context of enterprise bargaining which is allowed by the current legislation.

It is not unusual for enterprise bargaining to involve a common claim, at least as a starting process, or for common aspects to exist between different claims against different employers. As someone who has been an official with two unions—initially with the CFMEU and later, as a legal officer, with the LHMU—I can say that many of the agreements that were negotiated whilst I was an official with those unions included aspects of commonality, particularly at the commencement of the claim. To varying extents, the agreements that those unions—and other unions in various industries—negotiated involved substantial productivity improvements. A great many enterprise agreements include innovative work practices which have been negotiated at the workplace between workers, their union representatives and the employer. It is not uncommon practice, as a matter of industrial relations in many industries, for agreements to be commenced with a common claim or for aspects of claims served on employers to contain common clauses. This is not an unusual state of affairs and, despite the government's protestations to the contrary, it does not lead to industrial anarchy. Often it is simply a matter of practicality or what is appropriate in the circumstances. We are often talking about the commencement of negotiations with a common demand or at least a minimum set of demands which might be included in a number of claims. An example would be something like paid maternity leave, where unions may agree on a common claim or a clause that is proposed for inclusion in enterprise agreements that would be common across a number of industries in relation to a number of employers.

That is the industrial backdrop against which this proposal operates. What, in fact, is the government proposing? This is a set of amendments designed to prevent common demands. It is a set of amendments seeking to impose a legislative presumption as to one party not genuinely trying to reach agreement with the other. The effect of that presumption would be to facilitate the suspension or termination of a bargaining period. That is the stick the government seeks to put in the legislation to use against workers and their unions. These amendments seek to force the commission's hand. The commission already has powers to suspend or terminate a bargaining period. Here we have a specific set of circumstances which the government proposes to put in the legislation regarding bargaining—clearly, on the face of it, directed at unions—which would enable an employer to seek the suspension or termination of a bargaining period to their negotiating advantage. Why is this legislation needed? It is not. It is not justified in terms of the industrial practice—a practice that is engaged in by both employers and unions— of putting common claims on one another. It is also not required as a matter of law. It is already within the commission's powers under the existing legislation to suspend or terminate a bargaining period. That is a general discretion which is not fettered in a partisan way as is currently proposed in the bill.

The discretion which is currently in the legislation enables the commission to consider the totality of the facts before the commission in any application to suspend or terminate a bargaining period. One would have thought that this is a sensible legislative approach because it enables the commission to consider the multiplicity of the factual circumstances of the various disputes with which it deals. There is something to be said for a general discretion being vested in the commission to consider all these facts. In the absence of some pressing public policy concern or evidence of that discretion being exercised improperly, surely it is better to allow the commission to consider all the facts before it to reach a conclusion. However, that is not the approach that this government is taking. It is attempting to beat up what it says is a deficiency in the legislation. When one examines the proposal closely one can see that this is a beat-up and there is very little factual material which would support the government's suggestion that there is a deficiency in the legislation.

A number of honourable senators have mentioned the decision by Justice Munro in the metals case, which has been asserted as support for the government's legislation. I make a number of points about that case. As the Senate would be aware, that case did deal with an application to terminate bargaining periods under the existing legislation, and the commission did in fact move to terminate a number of bargaining periods on the basis— amongst other things—that the parties were not genuinely trying to reach agreement with a specific employer. One would have thought that that outcome itself puts paid to the government's argument that the legislation is deficient. Justice Munro did, however, find that pursuing an industry-wide campaign was not itself evidence of a failure to try and reach agreement at the enterprise level, so long as the union was prepared to negotiate with individual employers. His Honour also commented on the fact that employers engage in `pattern bargaining', which is the phrase used by the minister who sponsors this bill. Justice Munro made the following comment:

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

In other words, there are those in this government who criticise unions for seeking to progress industry-wide claims, but when there is a similar set of common demands or a common position is taken by an employer group—as has been documented in the metals case and in others—those criticisms are somewhat more muted. One would note that the legislation as it is currently drafted has unions specifically in mind.

As I said earlier, in the metals case the bargaining periods were terminated under the existing legislation. The comment was made by His Honour that advancement of claims in a way that denied individual negotiating parties the opportunity to concede, or modify by agreement, did not meet the test of genuinely trying to reach agreement. In other words, the existing legislation was not deficient in relation to the issue of pattern bargaining. The industrial context against which this bill is introduced was discussed at some length in the metals case. It was recognised by the commission that common claims and outcomes do have a place in Australia's industrial relations system and are pursued by employers as well as unions. One wonders why there is, despite this fact, a beat-up by this government about this legislation. One can only assume that there are some particularly political objectives that this government is pursuing.

This bill is not about genuine bargaining. It is a bill clearly aimed to weight rules which currently govern bargaining against unions. It seeks to diminish the powers of workers and their unions to bargain. What is the ultimate objective? It is bargaining Reith and Abbott style. As has been commented on in another speech, it is an approach to bargaining which is, `Please, Sir, can I have some more?' This framework reduces the negotiating position of workers and their unions. It seems odd that a government which professes to be supportive of genuine bargaining has refused in the other place— and presumably will refuse in this place—to support the notion of bargaining in good faith. One would have thought that this was a minimum standard of behaviour between the industrial parties, one which it is appropriate that the parliament seeks to facilitate amongst the industrial parties.