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Monday, 18 June 2007
Page: 98


Senator BARTLETT (8:10 PM) —I am keen to join my Democrat colleague, Senator Murray, in speaking on this legislation. This is a crucial area of Australian law—a pivotal one to the economy, of course, but also a pivotal one to Australian families, to our society and to the way our society operates. It is an area that has had a lot of public and media attention, but a lot of that attention has, in my view, really been about sloganeering and throwing ideological statements backwards and forwards rather than looking at the reality of what is happening and the practical and accurate detail of what is in the existing law, what is being put forward here and, indeed, what was in the system was prior to Work Choices being brought into place.

One of the amazing ironies I find in reading and listening to some of the commentary about the current Work Choices and workplace relations debate is that you would think that prior to Work Choices coming down the system we had was some sort of neolithic, union-friendly, Neanderthal, knuckle-dragging piece of 19th-century clunkery that the government has only just updated. Any suggestion of moving even partly back towards just to where we were in 2004 is usually screamed at as being a massive kowtowing to the union movement and a complete collapse back to the Dark Ages. As far as I know, no-one from the coalition during the 2004 election campaign, including the Prime Minister, went around complaining about how bad the workplace relations laws were. I am fairly sure, if I remember correctly, they actually used to talk about how positive they were—how they were a key contributor to Australia’s economic prosperity; how they were a good balance and a fair mechanism. They were all statements that, broadly speaking, I would agree with and indeed did agree with at that time.

Whilst always having variations and modifications one would like, it is a simple fact that the balance with regard to the workplace relations regime prior to the last election was reasonably acceptable. It could always do with refinement, it could always do with improvement, but it was broadly in the area of where you want it to be to balance all the competing interests that are there. Yet, somehow or other, now that we have Work Choices in place, any suggestion of going back to anything like that is portrayed as a massive retrograde step back to an ancient, distant past where all productivity would collapse. It shows how hysterical and detached from reality a lot of the public debate is about this issue. To me it shows the importance of having a measured, reasoned, balanced and common-sense approach to the whole workplace area.

Even just listening to the debate to date in this chamber we have had a lot of the accusations from the opposition about greedy businesses and dastardly employers and from the government side we have had all the standard arguments and lines about thuggish union bosses and exploitative unions and all those sorts of rhetoric that we are well and truly used to. As always, there are elements of truth in the picture that both sides attempt to paint, but, as is also always the case, a lot of that obscures the reality.

I guess you have to get used to rhetoric in this place. Back when the Democrats agreed to a modified version of an initial, tentative attempt to establish the Building and Construction Commission, I recall sitting in this place at about one or two in the morning towards the end of a session around June—probably a similar time period three years ago—and former senator Peter Cook, now sadly deceased, was holding forth at great length about how the Democrats were fascists for supporting evil legislation that was allowing this commission to be put in place. I might say that that commission was an extremely constrained, minor version of what the government put in place once they had the total power in the Senate, when they went the whole box and dice and took away all of the protections and removed the sunset clause and all of those things the Democrats had put in place. Now we hear that the ALP is happy to leave this new version of the Building and Construction Commission—which I presume, if the earlier version was evil and fascist, is five times more evil and more fascist—in place for a few years. Those are the sorts of absurdities you get in this sort of debate.

Throughout the period of the Howard government, the Democrats took the consistent position that we did not believe that the evidence was there that removing protections against unfair dismissal would create the wave of jobs that were promised. We did not believe the evidence had been presented so we took that consistent position in the face of a lot of attack, quite possibly losing some votes as a consequence. But now, suddenly, the ALP thinks it is acceptable to accept half of those things. The secret ballot provisions, which I thought then and think now are completely absurd, were resisted by this Senate repeatedly at the risk of putting a double-dissolution trigger in place. At the risk of threatening our own seats we consistently held firm on that and, suddenly, that is all okay for the ALP. Yet we all know what would have been said if the Democrats had agreed to any of those things at any time through that 10-year period. ‘Evil’ and ‘fascist’ probably would not have been the half of it; we would have copped twice more than that. That is the reality of this debate. To me, it reinforces that you have to block out all of the extremist rhetoric you get from both sides and simply look at the facts.

The same thing applies with the government benches and the ridiculous excessive attacks we have had on the union movement as a whole. Of course, in the same way as there are unscrupulous employers, there is the occasional union official who overreaches their power, but this absurd portrayal of unionists, trade union leaders and unions in general as some sort of jackbooted force crunching their way through Australia’s economy is beyond a caricature. It makes rational debate basically impossible. All we would need to do is to go back to the debate that happened in this place less than two years ago when the Work Choices legislation was first put in place. It was guillotined through this place after a disgracefully short Senate committee inquiry, followed by a tidal wave of amendments that nobody even had the chance to read before they were guillotined through this place. Anyone who simply sought to point out the flaws in the legislation got all the vitriolic rhetoric in the world from government ministers and the like, who would say how we were getting in the way of jobs, how we were beholden to the union movement and all the sorts of attacks that you could imagine. Yet here we are now—less than two years later—trying to address some of the very flaws that the Democrats and plenty of others were pointing out at that time.

So why is it that what we are doing now is an essential piece of fairness that will strengthen the safety net, yet amendments that sought to do very similar things less than two years ago were dismissed as ridiculous, excessive, bureaucratic, getting in the way of business, employment and growth and all of those sorts of things? It is about time we had some accuracy and honesty from all sides in this debate. It is about time that we got some of the absurd hysteria in the media commentary out of the way and just looked at the facts—at the reality of how the system works now, how it worked before and what will be put in place subsequently.

I suppose in one sense all you have to do is to look at the title of the legislation: ‘A Stronger Safety Net’. I suppose it is somewhat closer to reality than some of the other titles for legislation we have had in the past—for example, the notorious ‘More Jobs Better Pay’ bill, which may or may not have led to more jobs but it certainly would not have led to better pay for many people, in the same way that Work Choices has not. In the past, we have had some from other areas of law—for example, the migration procedural fairness bill, which actually removed procedural fairness. By those standards, just calling it ‘A Stronger Safety Net’ is half true, but it neglects to note that it is putting in place a safety net to make up for the damage done when this government tore away completely the safety net that existed prior to Work Choices.

That strong safety net, the no disadvantage test, linked to the existing award system and, whilst not completely perfect—it still needed some refinement and tinkering in terms of how it was administered and enforced—clearly operated in a way that ensured that people’s basic wages and entitlements were not driven downwards and that there was a safety net there that would protect lower income earners in particular from being exploited in situations where they had less bargaining power. So to completely destroy the safety net—to almost gleefully light the bonfire and circle around it, chanting and praising its destruction—and then to put a pale shadow of that safety net back in place and try to praise it as strengthening the safety net is fairly misleading, I might say. But, again, it shows how much all this debate is about spin and rhetoric rather than about the reality. It also highlights the importance of the role of the Senate. The reason why we had Work Choices in the first place, and the reason why we are here now with this piece of legislation, was not that Mr Howard won government at the last election—he has won government a number of times since 1996. Whilst we saw versions of workplace relations laws that were in the ballpark of Work Choices, none of them was ever passed because of the role the Democrats in particular played in finding a more balanced approach.

But the fact is we had Work Choices, and we have this legislation now, not because Mr Howard won government at the last election but because Mr Howard won control of the Senate as well at the last election. That is the reality and that is why, frankly, it continues to bemuse and amaze as well as frustrate me that there is so little attention paid in public commentary to the Senate contest and to the potential consequences of various Senate outcomes. Obviously it is in my interest, as someone seeking re-election, to want to get a focus on the Senate contests around the country, but it is also a simple fact that the very reality of Work Choices is a consequence of decisions made when people cast their Senate votes last time, not how they voted in the House of Representatives.

The same issues, clearly, will rise again at the upcoming elections. Work Choices and workplace relations will be a major election issue—it already is and will continue to be—and it has to be said that the choice people make when they vote for the Senate in the various states and territories will play a significant role in the future development of workplace relations laws whoever wins government. We already have what I think is quite a justifiable concern. However strong or otherwise this modified pale shadowy version of a safety net that is being put back in place is, there is a very understandable suspicion that, once the election is out of the way, if Mr Howard and the coalition win again this safety net will be out of the way and gone as well and we will be back to something akin to the original Work Choices, perhaps even with some of the extra things that needed to be done according to Senator Minchin. We all recall the speech that he gave when he suggested that further change, further movement, further reduction of whatever safety net or protections there were in place, still needed to occur. People have an understandable and justifiable right to be quite concerned about what might be done were the coalition to win government and retain control of the Senate. That, again, is the key issue: what sort of Senate will there be to oversee workplace relations laws and, of course, many other laws as well?

The legislation before us does put in place, or return, some protections to people and, inasmuch as it does that, it is of course welcome. Nonetheless, it does highlight just how much of an extra pile of red tape we have had put in place, and we are now having more put in place by the government. One of the great myths about Work Choices was that it removed red tape and regulation and freed up and opened up the whole system. It certainly removed a lot of things. It removed protections—there is no doubt about that—and it removed a range of other things in terms of some of the aspects of what employers needed to do. But it also put in place a huge regulatory regime to try to contain and constrain trade unions in particular and to constrain and prevent employers and employees from being able to reach agreement about particular things. Imagine putting forward legislation saying, ‘We are removing constraints about how people reach agreements in the workplace,’ and then putting in place in law all these things that you are not allowed to put into your agreement. What we have are a lot of ideologically driven barriers and walls and pieces of red tape—social engineering—from government contained within Work Choices. We actually get the double whammy of removal of protection but on top of that a pile of extra red tape. It is quite extraordinary and it is probably partly why we have had a reduction in productivity since Work Choices came into being.

These extra changes put in place in this legislation will reintroduce some protections but they will also most probably further increase regulatory controls and oversights. They will also increase the amount of resources that need to be put in place by government to monitor and oversee the system—that is assuming there is a genuine desire to ensure that such protections as are put back in place by this legislation are properly enforced. That is a very big question mark, and one that does need to be followed through. By putting in place this threadbare safety net you are putting in place much stronger requirements to oversee and monitor in order to enforce the protections, insufficient as they are, particularly because they have been uncoupled from the broader global no disadvantage test and the global floor of basic award protections. In many ways, then, you have a much more complicated job if you are trying to ensure and to monitor that these protections are properly enforced. In some ways we are actually getting the worst of both worlds with the approach that the government is taking, with a back-track here that should reintroduce some protections but at the cost of even further complications and even further red tape.

The point I want to emphasise in closing is the importance of getting a balanced, common-sense approach when it comes to workplace relations. If there is one area that the Democrats have been completely consistent in over more than two decades now, with both coalition and Labor governments, it is that we have sought to find the middle path between attempts to completely enforce the union line and attempts to completely enforce the line of at least some in the business sector. Whilst there is always room for nitpicking along the way, I believe that the Democrats have done an extremely successful job in finding that middle path, in balancing the competing interests and competing rights, the need for protections and for recognition of family life, of the work and family balance and the social contract, and of enhancing productivity. I think we can justly claim to have played a significant role in contributing to the economic prosperity that Australia has enjoyed for some period of time, opening up enough flexibility in the workplace to enable greater productivity and, indeed, enabling people to have greater flexibility in their own working environment, which I think is an important part of the modern workplace, but not at the expense of destroying the social contract or of removing protections.

This has to be an ongoing debate based on those principles. It is about time we had the debate based on principles and practical outcomes rather than grotesquely overstated rhetorical flourishes. I hope we can do that between now and the federal election, although I suspect it is probably a naive hope. To some extent a lot will depend upon how the media engages with it. If they focus on some facts and substance rather than just going for the most colourful, extreme beat-ups we might get somewhere. Let us see.