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Wednesday, 25 June 2003
Page: 17461


Mr RANDALL (12:20 PM) —It is my pleasure to speak on the Workplace Relations Amendment (Transmission of Business) Bill 2002. I wish to point out from the outset that this is a government that is actually involved in policy. The members on the other side of this House talk about policy. I remember the Leader of the Opposition, Mr Crean, saying, `We are about policy, not popularity.' The Newspoll results shored up the lack of popularity, but we are shoring up the fact that this side of the House is interested in policy. Before the last election in 2001, we stated quite categorically that in a third term the Howard government would:

Simplify the legal rules that regulate employment rights and obligations upon the transmission of businesses from one employer to another.

It was our commitment to the Australian people in the Australian workplace that we would simplify and regulate the employment rights and obligations from one employer to another. As a result, the purpose of this bill is:

To amend the Workplace Relations Act 1996 ... to allow the Australian Industrial Relations Commission ... to order that a new employer is not bound by an existing certified agreement which specifies the terms of employment for the employees of the acquired business; or, that the new employer is to be bound to a certain extent and/or for a certain time.

The fact is, the Workplace Relations Amendment (Transmission of Business) Bill 2002 is necessary in the current climate of business in Australia because there are a lot of anomalies and complexities that need to be addressed. I am always interested in listening to the member for Barton's dissertations to the House because he is always very measured and generally well informed. But again he has taken on the mantra of the union movement in this case and allowed it to colour the sensible conclusions that could be reached. But generally he made some very good points.

It appears today is wharfies' day in this House. The member for Batman spoke in here on an earlier bill and went on ad infinitum about the wharfies. The previous speaker and opposition spokesman on this issue, the member for Barton, spent much of his 30 minutes on the wharf dispute of some time ago—which I will return to if I have time.

I would have thought that the Australian Labor Party would have stuck to its guns and supported something that strengthens the powers of the Australian Industrial Relations Commission. This is what this bill does in some respects. It allows the AIRC to take a greater role in determining these matters. I thought strengthening the independent umpire was the result desired by the Australian Labor Party but that is obviously not so.

There is employer concern that the possibility of having to meet obligations of a variety of employment instruments following business acquisitions has not been resolved. It is still complex. I will outline for the House and those interested that where an enterprise agreement is registered under federal jurisdiction it becomes a certified agreement, or a CA. Where an individual employment arrangement is formalised it becomes an Australian Workplace Agreement, or an AWA. I put that on the record.

We need to understand that this legislation will simplify and clarify some of the outstanding issues that result from the transmission of businesses from one owner or shareholder et cetera to another. As the previous member said, corporate restructuring in Australian business due to globalisation and the inflow and intricacies of global funds precipitates this bill in some respects. The bill does provide a means for resolving the complexities which arise out of the transmission of business, as I have already said.

This bill will allow the AIRC to exercise its discretion to resolve anomalies and other difficulties that may arise out of the sale or transfer of businesses from one entity to another by empowering the AIRC to make an order that a certified agreement does not bind an incoming employer on a transmission of business, or binds the employer only to a specific extent. The AIRC already exercises similar powers in relation to awards.

The government promoted this bill as policy before the 2001 election. Interestingly, a very similar bill to this was in the House before the 2001 election. It passed through this House and reached the Senate. I will refer to some of the comments made in the inquiries by Labor and Democrat senators if given time.

In essence, the bill facilitates these arrangements. I would have thought that the Australian Labor Party might have been interested in seeing good policy—policy that actually helps facilitation of business in this country. The facilitation of business, when talked about by those opposite—un-believably—does not seem to ever be connected with the creation of jobs. One of the difficulties frequently mentioned by business is that they sometimes find themselves in either multiple or contradictory certified agreements after restructuring or the acquisition or take-over of a business. This needs to be addressed.

The previous speaker described some of the elements as unfair. How can something be unfair when the commission's powers to make orders in relation to certified agreements can be exercised only on a case-by-case basis and only by application of one of the affected parties? The parties themselves must apply to the commission and allow the commission to make decisions on their behalf. The AIRC also has a role in protecting employees. It ensures, by giving employees the right to make submissions to the AIRC, that these orders are met and dealt with.

There are a number of positions on this issue. An inquiry was generated in the previous parliament under the previous workplace relations minister, and the Senate committee reported on that transmission bill. There were a number of interesting submissions to the committee. The unions quite rightly said—and I believe that there is a case to be made here—that there are vexatious employers who will use restructurings or acquisitions as opportunities to see workers worse off. But this bill addresses that. There is a no disadvantage test. Ultimately, the union sub-mission to this inquiry was that—and they cited a number of cases—where a business has a package in existence and that business is taken over by another company, that is often used as an opportunity to reduce the terms and conditions of those employed. That is a very relevant point. But under this bill that will be addressed by the Australian Industrial Relations Commission, and quite rightly so.

As I said, one of the mantras of the Labor Party is meant to be that they want to see a strengthened and more proactive role for the AIRC. So it is very difficult to understand how the Australian Labor Party can divide away from that. From an employer's point of view, one of the submissions said:

In practical terms the new business cannot integrate the businesses because they cannot vary the terms of the existing agreement, except to have a valid majority of people under the agreement agree to cancel it.

That is fine. As I said, that submission asks for it to be addressed under this legislation. They continue:

The point is that if a new agreement could be developed it would have to pass the no disadvantage test of the two awards but it would be a global test in respect of both work groups—

and—

... in a global sense not leave the workforce worse off and be approved by a valid majority, but this course cannot be followed currently. We are simply asking for a procedure to enable the Australian Industrial Relations Commission to look at all these issues.

We have heard the Labor Party's objections. I will not go through all the submissions that they made. But interestingly, the Australian Democrats, through their spokesman, Senator Murray, had a fair bit to say on this issue. It would have been interesting to see where this legislation would have ended if it had come to a vote before the proroguing of the previous parliament, given the comments by Senator Murray. I will refer to them now. He said:

The Australian Democrats have a long tradition of supporting the AIRC having an independent discretion to determine industrial relations matters on their merits. Discretion of course is never open-ended, but it has long been our view that wherever possible such discretion is a better guarantor of fairness and flexibility. However we do recognise that discretion can lead to uncertainty and cost until such time as orders have been made.

It seems self-evident to me that the AIRC should have discretion in respect of transmission of employee conditions in business acquisitions, particularly when more than one certified agreement affects `old', `transferred' and `new' employees in a business. The AIRC needs to determine which agreement should prevail. Provided that is, the AIRC continue to recognise that the intention behind transmission of business provisions is, in the interests of fairness, to provide a protective mechanism for employees. They must do this while taking into account a need to provide new or reformed businesses with necessary operational flexibility.

That is Senator Murray's view. As I said, it would have been very interesting to see what the Democrats would have arrived at if this legislation had been voted on in the previous parliament. But it gives heart to see that the Democrats, unlike the Australian Labor Party, are interested in the Australian Industrial Relations Commission having a stronger role in determining these matters in the modern world in which we live, which was referred to by the opposition spokesman.

The opposition spokesman, the member for Barton, said that the AIRC would diminish the rights and conditions of workers under this bill. Then he unbelievably went back to a case study of 1940—the Nokes case. If that is not an industrial dinosaur, I will never know what is. It is unbelievable that he would use case studies of that age to support his and the Labor Party's case in this House. It indicates the mentality of those opposite in terms of the world in which we live. It is time for the Australian Labor Party to modernise their thinking on business in this country, because globalisation is a fact of life. It is time to address these issues rather than just going back into the old bib and brace overalls mentality of the previous Labor movement—to which many of these people still ascribe.

This legislation is about business being able to survive. It is about business being able to provide jobs—and, if a business is surviving and making a profit, it can provide jobs. What is the matter with that? It is unbelievable for the Australian Labor Party to say that this will affect jobs, when the unemployment rate is currently six per cent. Where was it under the previous employment minister, the current member for Brand, when the Labor Party held this side of the parliament for 13 years? We know what the unemployment level was then. So much for their great intervention in the Australian work force and their provision of jobs for Australian workers.

As I say in this place all the time, one of the greatest myths in this country is that the Australian Labor Party is here for the workers. It is not here for the workers at all; it is here for the elites and the hereditary peers in the Australian Labor Party and it is here for the elites in the union movement. The front bench of the Australian Labor Party is festooned with former presidents of the ACTU and shop stewards. Seventy-eight per cent of members of the Australian Labor Party in this House have some sort of union connection in their background. They are totally out of touch, given the fact that about 20 per cent of the Australian work force belongs to a union.

Come into the modern age. Come and walk with us into the 21st century so you can do the right thing by Australian workers instead of feigning this mock moral unction, such as when the member for Batman went on about the wharfies. In fact, if you want to use his case, as the member for Barton did, remember that we have provided far more jobs for people in this country on the wharves and ships—as I just indicated—because we now have an economy that is one of the greatest economies in the world. It is the second fastest growing economy in the OECD. As a result, jobs and certainty flow to this country from that economic benefit. It is not something that the Australian Labor Party in any way intended to provide to the Australian people during their previous management of this place.

In the few moments I have left, I need to address a couple of specific issues. This bill is better targeted than the previous bill and it is fairer. It expands the category of people who may apply for an order and it refines the categories of people who may make submissions. The previous bill allowed only an employer to apply for an order before transmission. This bill allows employees covered by this agreement to apply after the transmission of business. The bill will also allow those who would work for the new employer under the agreement, plus any other relevant union, to have a say if an order is sought. No-one is leaving out the union movement. We are quite happy for them to act as agents or to act on behalf of people. We are actually encouraging their involvement through this bill, which addresses previous anomalies.

I turn to the commission's powers regarding the transmission of certified agreements. The problems which may arise following the transmission of a certified agreement may be different from, and sometimes more complex than, the transmitting award. The bill gives the commission power to make orders in relation to the transmission of certified agreements. The bill also gives the commission powers to deal with certified agreements that are equivalent to those it already has for awards.

I could go into several case studies, but let me return to the issue before us today. The member for Barton mentioned several cases, including the wharfies. It must be wharfies day today in this House. I will raise the Ansett issue. This is a prime example of the unions basically cooking Ansett's goose. What a legacy they provided for the poor old Ansett workers! Mr Deputy Speaker, do you realise that an Ansett pilot received more money—more salary—than a Singapore Airlines 747 pilot? The unions put conditions on Ansett to such an extent that the situation became untenable. The unions of this country saw the destruction of Ansett because they allowed it to become totally fat, useless and uncompetitive in terms of its involvement in the airline industry.

What was the result? Do people think that Solomon Lew and Lindsay Fox would have been happy to just take Ansett Airlines over as it was? No, they wanted to restructure it. They wanted to deal with the issue. They were not going to take on this greatly fattened goose that the unions had produced. This was one of the reasons why you would not take on agreements that had been put in place previously. You would want them arbitrated on. What was the upshot for Ansett employees? Everyone lost their jobs. The airline went down the tube as a result of the unions allowing it to get out of control in terms of size and greed—as compared with a slimmer, meaner, more competitive Qantas and other airlines in this country and around the world.

This is good policy. It needs to be endorsed. I support the bill. (Time expired)