Senator MURRAY (12:56 PM) —I too wish to speak on the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 [No. 2]. This is identical to a bill introduced in the House of Representatives on 20 February 2002. I recall that, unusually, the government united with the opposition parties to negative this bill in the Senate at the third reading stage—which I think entered into the annals of Senate history as a result. That occurred on 25 September 2002. The bill had been to committee. My own remarks, if people are interested in referring to them, are available at that date in the Hansard. This bill, if it again bounces between the houses, will become available as a double dissolution trigger, because a failure by the Senate to pass this bill has the potential to trigger a simultaneous dissolution of both houses under section 57 of the Australian Constitution. The last possible date for a double dissolution to be determined by proclamation of the Governor-General is 11 August 2004, at which time the House of Representatives will have to close up. After that date, so the library tell us, the latest polling date for a consequent double dissolution election is Saturday, 16 October 2004. That gives some time for people to consider whether and if there will be a fate to contemplate!

I want to start by remarking that this bill of course attends to provisions affecting protected action, not unprotected action. It is a great pity that to this date the Australian Bureau of Statistics and the department do not record statistics for days lost under unprotected action. Indeed it is in the latter area, in the area of unprotected action, that if there is a possibility of intimidation or of any undue pressure then the greater dangers probably exist. One of the most telling admissions from the department in the hearing when the matter was before committee came from Mr Smythe, who is the chief counsel for the department. He said:

Mr Anderson being another member of the department—

This is a situation where the department is saying that the bill is not predicated on intimidation, yet much of the argument I hear from government members is that it is. Frankly, I would rather refer to the evidence on the record on that basis.

So the first issue is that of the bill only attending to one area of days lost, which is those lost under protected action. The second issue, of course, is that no evidence has been offered to the committee, nor is available in the general community, that intimidation occurs on any scale which requires a legislative response. That too is probably another criticism we would make of this bill—that is, it adopts a shotgun approach, not a rifle approach. My own belief is that, if you identify issues in particular industries, it is better to apply the remedy to those industries rather than to approach the matter by initiating complex, technical and often difficult to comply with legislation across all industries where there may not in fact be a problem.

Let us return to the issue of industrial days lost. In 1970 there were 550 working days lost per thousand employees. In 1980 that had lifted to 650 working days lost per thousand employees, which was a real issue. During the decade 1991 to 2000, the highest ever figure was 240 working days lost per thousand employees in 1991. It is important to recognise that the Labor Party at that time understood that the issue was getting out of hand, and it was the Labor Party who, in 1993-94, initiated the first wave of legislation to radically alter the industrial relations environment. The second wave, as everybody knows, was in 1996-97, when the coalition followed up on Labor initiatives and refined that groundbreaking law introduced, I seem to recall, under Mr Keating by Mr Brereton. At that time, the highest figure was 240 working days lost per thousand employees in 1991. The latest figures for the 12 months ended January 2002 show that there were 49 working days lost per thousand employees. So industrial disputation has come down drastically, and this characteristic of a more peaceful, more cooperative, more efficient, more flexible industrial relations environment is commented on favourably in the OECD reports and in other areas. So these figures do not indicate a major problem.

Another indication that there is no major problem is the presence of sections 135 and 136 of the Workplace Relations Act, which permit the Industrial Relations Commission, at their discretion, to order secret ballots. There have been well over 30,000 enterprise bargaining agreements where they could have initiated secret ballots, on either their own motion or on the application of various parties, and my records show that they have only done so 12 times. That too is an indication that there is a very low level of concern.

This bill requires the conduct of a secret ballot by employees as a prerequisite for authorisation from the Industrial Relations Commission to take protected industrial action during enterprise bargaining negotiations. The point has been made by the Labor spokesperson that this is a long-term policy objective of the coalition. So in that sense it is quite proper for them to continue to pursue it; however, it is a long-term obsession which is not founded on a great need and is likely, if introduced in this form, to actually make more rigid and less effective the system that we currently have. The only precedent for this sort of law was in Western Australia. It caused immense union and political heat, it shed very little light and no beneficial outcome ever occurred. In fact, the act ended up being a dinosaur and its demise was welcomed by employers and employees alike. So that is the record there.

This bill, as I said earlier, is the coalition's third attempt to make access to protected industrial action for enterprise bargaining under the Workplace Relations Act contingent on there being a ballot of the employees involved, and the Commonwealth generously have suggested they will pay 80 per cent of the ballot costs. They are short of money for the war so, if we knock off this bill and they do not have to force ballots, they can save that 80 per cent they otherwise would have spent and put it to other more pressing needs.

This bill is the coalition's third attempt but it is a less aggressive version of its two predecessors: the quaintly named mojo bill, the 1999 More Jobs Better Pay bill, and its softer successor in 2000. But its technical requirements remain overly complex, prescriptive and onerous. There is also no general evidence, as I said earlier, of intimidation in union meetings called to initiate protected industrial action that would justify such a sweeping change. In one or two places, in fact, the bill is rather badly drafted, which I must say is unusual for the department concerned.

I have said that a more targeted or selective approach to secret ballots, with Industrial Relations Commission attention to unions or industries where intimidation is more likely, would be less onerous, less costly, more effective and relevant in areas where it is truly needed. That is not the government's approach—in my view, it should be—but of course if it were to be, you would still have to make the case for those particular industries and you would have to produce the evidence. Sections 135 and 136 allow the commission to order a secret ballot or for union members to make an application for the Industrial Relations Commission to conduct a ballot. Of course, as we know, elections for union officials are already by secret ballot. So there are secret ballot provisions in the law.

When the bill was before us in September last year I said that at the committee hearing I discovered to my great surprise that most unions do not have in their own rules secret ballot provisions for industrial action. I think that is a great omission; it is a great shame. Missing from the IR scene, therefore, is a means for union members to ask for a secret ballot to be conducted by the union at their members' request. The unions that were selected to appear at the hearing, which included the AMWU, said that they had absolutely no objection to secret ballot processes by a union for their union members, so axiomatically that would mean that any legislation introducing a requirement that unions should have in their rules secret ballot provisions which they would voluntarily use at what they regarded as the appropriate time would be a step forward in the proper functioning of unions in these areas.

The Democrats' policy recognises the legitimate role of unions in protecting the interests of workers who wish to be represented by them and in moving to improve the internal democracy and accountability of unions. We believe that the Industrial Relations Commission should have sufficient powers to end industrial action and to resolve underlying issues by arbitration. We have always supported the democratic protections afforded by secret balloting processes but there is no empirical or credible evidence that an industry-wide set of somewhat complex rules such as those that are being proposed is justified.

For the interest of the chamber, I have circulated my amendments on sheet 2877. Most importantly, they seek to introduce secret ballot rule provisions for unions, and they should be dealt with if not in this circumstance then in later bills. I say that because I think the reason this bill is coming back in this way is simply that it is a double dissolution trigger mechanism. Therefore, if there were serious policy issues to be discussed, such as those that I will attend to in the committee stage, it would only be right and proper for them to be dealt with. For the purposes of this debate, the department should note that I said earlier that proposed new section 307A(1)(b), for example, was badly worded. Perhaps the department will take the opportunity between now and this evening to initiate an amendment to improve their own drafting, because the provisions before us are not too good.

The issue at hand, therefore, is whether a longstanding policy of the coalition deserves to be accepted by the parliament of Australia as a legitimate basis for changing the law. The fact that it is a longstanding policy is not relevant to the parliament, except to note it in passing. What is relevant to the parliament is to examine whether there is any evidence of its need. The committee hearing and the statistics provided by the department both now and in the past do not make the case for the advancement of the bill. Therefore, it is my view that the bill should continue to be rejected unless our amendments are accepted.