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Tuesday, 24 September 2002
Page: 4764


Senator KIRK (5:50 PM) —I rise to speak on the Workplace Relations Amendment (Genuine Bargaining) Bill 2002. I do so in the knowledge that this is the third time the government has attempted to introduce legislation with the aims of preventing so-called pattern bargaining and introducing cooling-off periods. The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 is less prescriptive than its predecessors that were rejected by the Senate in 1999 and 2000. The earlier bills obliged the commission to suspend or terminate a bargaining period if certain conditions existed. This bill leaves intact the commission's discretion but provides guidance as to how this discretion should be exercised. This bill does not refer to pattern bargaining as such. Instead, it directs the commission's attention to what the government perceives as the objectionable features of pattern bargaining. While the bill refers to genuine bargaining, nothing in this bill seeks to facilitate genuine bargaining. The government has tried to portray this bill as moderate. However, like its predecessors, the bill is narrowly focused on reducing the right to take protected industrial action and on suspending or terminating the bargaining process. This bill is not a genuine attempt to enhance the bargaining process. Rather, it interferes with the discretion of the commission to deal with industrial disputes in the most appropriate way.

I wish to briefly mention enterprise bargaining and Labor's support for the development of enterprise negotiations. The Labor Party has not only supported but has initiated changes to industrial relations law in this country—changes that have increased productivity in Australia. I also wish to mention the role that workers and their elected representatives, the unions, have played in increasing the productivity of industry in Australia. Workers and their representative unions have played a vital role in changes that have occurred in Australian industrial relations law. It is unreasonable, to say the least, that this government refuses to acknowledge the enormous contribution that Australian workers and their unions have made to the productivity of this nation.

This bill represents a watered down version of previous bills. Presently the commission has a general discretion to suspend or terminate a bargaining period if it is satisfied that an organisation taking industrial action is not genuinely attempting to reach an agreement with the other party. This legislation will require the commission to consider, among other things, whether the organisation's conduct evidences an intention to reach an agreement with other parties in the industry. The bill specifies that such an intention would indicate that the organisation is not genuinely trying to reach an agreement with other negotiating parties. Under existing law, a party initiating a bargaining period can terminate the bargaining period if it gives notice to the other negotiating parties that it no longer wants to reach an agreement. This bill will give the commission a discretion to order that the party who terminates the bargaining period may not initiate a new bargaining period in relation to the matters dealt with under the proposed agreement, or may only initiate a new bargaining period on certain conditions.

Proposed section 170MW(2A) of the bill purports to provide guidance to the commission on matters that would tend to indicate whether a party to enterprise bargaining negotiations is genuinely seeking to reach agreement. The explanatory memorandum of the bill refers to a significant decision of Justice Munro in the metals case in 2000. However, a close reading of Justice Munro's decision in this case makes it clear that the commission does not require guidance in this area. Justice Munro was clearly able to articulate what he regarded as factors that indicate whether a party was genuinely negotiating. In the metals case, Justice Munro used the existing section 170MW(1) to terminate a bargaining period of 33 employees because he was not satisfied that there was good faith bargaining. It is worth referring to the key finding of Justice Munro. He said:

Does it follow that, if in truth the respondent negotiator is trying to secure agreement with all, or an entire class of negotiating parties in an industry—all or none—the respondent negotiating party is not genuinely trying to reach agreement with any individual negotiating party in the industry or class? In my view, it does. But in a particular case, a finding to that effect is dependent upon matters of fact and degree.

In other words, Justice Munro made it clear that there is no black-and-white prescription as this legislation is attempting to impose. In explaining what he meant by `fact and degree', Justice Munro said:

Such questions of fact and degree obviously need to be answered by reference to evidence and details of particular facts. The more the negotiation conduct can be categorised as evidencing a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the `genuinely try to reach agreement with the other negotiator'test. However, there are variations and permutation of demands, conduct, and character of negotiating parties that must be assessed.

Justice Munro approached the matter in a pragmatic and sensible way, by looking at what was actually occurring without making any ideological assumptions. The commission did not need to be directed to work out whether the parties in this case were negotiating in a genuine way. It is appropriate and sufficient, in the Labor Party's view, for a reference to the decision of Justice Munro to be inserted in section 170MW of the act. This is the effect of the opposition's amendments, in the proposed section 170MKA.

As I said earlier, the government has removed any reference in this bill to pattern bargaining, yet under this legislation the commission is required to determine that if commonality of bargaining is occurring this cannot be genuine bargaining. This reflects a fundamentally flawed assumption. There are many examples where common agreements are reached throughout an industry, for example in the retail industry. These agreements not only have excellent results for workers and employers alike but also are conducted in good faith. The Labor Party wants to create this culture of good faith industrial negotiations, and that is why the member for Barton moved amendments to the legislation in the other place to create `bargaining in good faith' provisions.

In the metals case, Justice Munro made it clear that such commonality of bargaining is a well-established practice. He said:

A common set of demands for conditions of employment, or for timing of negotiating 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. I do not use the expression `pattern' to describe such demands. The notion of pattern demands or pattern bargaining lacks precision. It also has a partisan pejorative content.

Justice Munro rightly recognised that the industrial strategy of pursuing common outcomes across workplaces is practised as much by employer negotiators as those of employees. As my colleague Senator Sherry observed, the Commonwealth government itself often engages in such an industrial strategy. I have indicated that this bill ignores basic industrial relations realities in this country.

As my colleague Senator Hogg said, in the retail industry it is not uncommon for a letter of demand and a log of claims to be served on thousands of employers at one time. In its submission to the Senate committee inquiry into this bill, the Shop Distributive and Allied Employees Association outlined how this legislation would severely hinder genuine enterprise negotiations. In July 1998, the SDA served letters of demand and logs of claims on approximately 35,000 employers as part of a campaign to improve the wages and conditions of employees. The mere service of the letters of demand and logs of claims on more than one employer would be interpreted by the commission, should this bill be successful, as pattern bargaining. This is simply because the union has initiated a course of conduct in which common claims for improved wages and conditions of employment are sought from more than a single employer.

Unions such as the SDA have been at the forefront of seeking to make workplaces more family friendly by negotiating such matters as parental leave for casuals and improved maternity leave provisions. A number of employers in the retail industry have been prepared to agree to such matters. The making of these types of claims when seeking enterprise agreements with more than one employer displays a course of conduct in negotiations that extends beyond a single business. Notwithstanding the obvious social benefits of these claims and the desire of workers to have these claims made on their behalf, it is clear that, should this bill be enacted, the commission would find such conduct to be contrary to law. The passage of this bill would make enterprise negotiations in a wide range of industries both more difficult and cumbersome. Even where claims are socially desirable and economically reasonable, they could fall foul of the provisions of this act.

The Labor Party is committed to creating an environment of good faith bargaining. As Senator Sherry noted, a number of the factors contained in proposed section 170MW(2A) do reflect the principles of good faith bargaining. Yet, under this bill, such factors only apply if and when an application has been made to the commission to suspend a bargaining period in order to curtail or prevent industrial action. The effect of this would be that, in practice, such a requirement for good faith bargaining would apply only to unions and only in cases where the union was considering or taking protected action.

Labor's amendments to this bill seek to restore the commission's power to order all parties to bargain in good faith. These amendments will re-empower the commission to direct parties to negotiate in good faith and to reach agreement before industrial disputation occurs. Good faith bargaining encompasses a range of procedural requirements, including that the parties meet face to face, attend organised meetings, comply with agreed negotiating procedures, disclose relevant information, state their position on various matters, consider and respond to proposals, and adhere to commitments made. These are all reflected in the amendments proposed by the opposition.

The duty to bargain in good faith is a duty that is shared by all parties and is a duty that focuses on developing a relationship between employers and unions which is based on trust and confidence. These are not unreasonable requirements. They are requirements that parties to any corporate takeover negotiation would expect. The government would be happy to support companies to negotiate in good faith, yet they will not support Australian workers and their elected representatives having the same right to negotiate in good faith with their employers. The previous Labor government introduced the requirement for parties to bargain in good faith in 1993. This requirement was repealed by the coalition government upon taking office in 1996. Both Western Australia and New Zealand have introduced good faith bargaining laws and such provisions also exist in New South Wales and Queensland legislation.

In the time remaining, I wish briefly to address proposed section 170MWB, which provides for cooling-off periods. The introduction of cooling-off periods in this legislation is designed to lessen industrial stoppages, which in itself is a laudable objective. Enterprise outcomes without stoppages are what all parties should be attempting to achieve. But, instead of encouraging the commission to bring the parties to the negotiating table and forcing a resolution, this legislation has the effect of encouraging the commission to walk away from difficult disputes. The difficulty here is that simply directing a cooling-off period without any requirement being imposed on the parties during that cooling-off period as to how to conduct themselves during that time will have limited effect. Instead of directing the commission to introduce cooling-off periods, the government should be strengthening the role of the commission so that it gets involved earlier on in the process so as to ensure that the bargaining process is conducted in good faith and industrial stoppages are avoided. This provision makes clear the government's intention to promote measures that will continue to erode the role of the commission as the independent umpire. This will have the effect of hindering the fair and efficient settlement of industrial disputes in this country.

In conclusion, the government is attempting to introduce legislation for the third time that seeks only to undermine good faith enterprise negotiations. The government has not made any significant modifications to its two earlier bills. In recycling this legislation, all the government seeks to do is to continue its attack on unions and the people they represent—the working people of Australia. The government does not seek to do anything constructive for enterprise negotiations, it does not seek to do anything for Australian workers and it certainly does not advance genuine bargaining.

This government needs to start listening to the workers of this country and even to the employers, because they will tell you that commonality of bargaining does not necessarily mean that there is an absence of bargaining in good faith. In its amendments, the opposition seeks to empower the commission to invoke its procedures and use its expertise to assist and facilitate the parties in reaching an agreement in respect of the particular enterprise concerned. Clearly, the Australian Industrial Relations Commission has this expertise, and it should be recognised as having a legitimate and important role in the enterprise bargaining process. I urge senators to support the opposition's amendments which improve what is otherwise a fundamentally flawed bill.