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Wednesday, 25 June 2003
Page: 17474


Mr BRENDAN O'CONNOR (1:21 PM) —I feel a little sorry for the member for Blair. Clearly, not only was he given the short straw and so had to come and speak on something he knows nothing about but also he has obviously picked up the wrong Bills Digest, because the Workplace Relations Amendment (Transmission of Business) Bill 2002 is about transmission of business and whether it is fair to remove existing entitlements to employees as a result of transmission. Just for the benefit of the member for Blair, although I see him leaving the chamber because he does not really want to listen to the debate, the fact is that the transmission of business provisions of this country have been around almost since Federation. They have been around since only some years after the establishment of the Court of Conciliation and Arbitration in the first decade of last century. They were there quite simply in order to protect employees if there was a sale of a business, so the undertakings given from one employer to his or her employees would not be yielded or removed if that employer sold his or her business.

Those provisions have been there for just under 100 years. To put it in that context, to attempt to actually remove existing entitlements of employees by providing the capacity for an order to be made is worrying. That is not to say that orders have not been able to be made in the past. Indeed, orders of the commission have been able to be made under section 149(1)(d) of the Workplace Relations Act. That provision mirrors the provision of the 1988 act and allows for the commission to make orders in relation to transmission. However, there have been some recent developments in that area which make things a little different from not only the turn of the century but also perhaps 30 or 40 years ago, and I want to touch upon some of those.

I grabbed the Bills Digest myself and noticed that there is a reference to indicate why the government would be putting this bill up now, and the supposed nexus is between what was being claimed to be done going into the 2001 election and what is now being proposed. The Bills Digest said that this issue:

was touched on in the Coalition's 2001 workplace relations policy, Choice and Reward in a Changing Workplace ...

Then it went on to quote the campaign slogan for the coalition on this issue, saying:

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

It sounds rather innocuous: a simple rule change to allow for employers to simplify the rules of transmission. That is apparently what the government is relying upon as a mandate to change the provisions that currently protect those people that enjoy conditions contained in a certified agreement pursuant to the Workplace Relations Act. That is what is being argued here. That was indeed referred to in the Bills Digest. It is a very long bow to draw to argue that this is about simplification of a process. This is about much more than that because, as the transmission of business provisions prevailed from awards to awards and agreements, the certified agreements provision that almost mirrors the award provisions—that is, section 170MB of the act—has not provided for employers to be able to seek such an order.

For those on this side of the House who have been watching now for at least seven years as this government tears asunder the powers of the commission, it seems to us truly ironic that we have a government that argues that it wants to confer powers upon the commission to intervene and make an order to diminish the conditions of employment of a work force. It would appear that the only time this government will provide the whistle to the independent umpire is when it is able to penalise the worker in the field, not the employer. That is the concern I have about the changes, and it also undermines the argument that this is about simplification of existing rules. It is about much more than that.

If allowed to pass, this provision would enable an employer to establish a shell company to bid for work under some sort of contracting-out arrangement or bid to purchase all or part of the first company. That new company could then argue that it is not bound by the agreement under which the original employer is bound and would seek to find an order. I can assure you that in every case it would be seeking the commission to make an order to diminish—not enhance—the conditions of employment of those employees. We the parliament should not accept that capacity. It is clearly not in the interests of the Australian work force.

The member for Blair did raise one point which I am happy to acknowledge. He did raise the fact that there are many thousands—in fact millions—of employees under certified agreements. Their conditions of employment would potentially be far worse if this provision were allowed. It would then allow the employer to seek that order. Some have said to me, `What is the concern about allowing the commission, the umpire, to make an order?' In normal circumstances I would say that there should not be a problem with that. There are two points I make in relation to that, and I have already touched upon one of them—that is, for the first time this government wants to provide powers for the commission to invoke only against the work force, not against the employer nor indeed in favour of the work force. That is obviously a concern.

But there are other concerns too. Increasingly, the Australian Industrial Relations Commission comprises commissioners who are on the record as either showing contempt for the Industrial Relations Commission or, indeed, being all from the employer's side. That is not to say that there are not very good commissioners and senior officers of the commission from the employer's side—historically there have been quite a few very good commissioners drawn from that side. But this government has gone about choosing individuals to be appointed to the commission who hold a very narrow view on industrial relations, some of whom are on the record as condemning the actual existence of the Industrial Relations Commission. So along with this unusual, almost paradoxical, step of the government to allow powers to the commission only in the instance where it can act against the interests of the work force, it is also allowing an order to be made by an increasingly partisan statutory authority—and it is a partisan commission due to the fact that, of the last 15 appointments of commissioners, 14 have come from the employer's side.

So the bias that is being entrenched in the commission, and the fact that the government wants to allow an order to be made by the commission only in circumstances where the work force could be worse off, is another reason why this bill is inequitable and pernicious. It should not be agreed to and certainly not supported by the parliament.

The fact is that there are many other reasons why this bill should not be agreed to. It is easy to talk about provisions. I do not think everybody is particularly concerned about one provision or another, but I think they understand the general point that is being made—that is, there should not be a provision in any act that would disadvantage one group in the work force in favour of another. It is also important to note the timing of this bill. This bill is a manifestation of a bill that was introduced some years ago. In fact, it is the third attempt to amend the transmission of business provisions of the Commonwealth, and it comes against the backdrop of Federal Court decisions which found that the recent spate of contracting out in the work force was a transmission and that therefore the provisions of the Workplace Relations Act would apply. So there have been recent judicial determinations which have brought back into favour the notion that contracting out and outsourcing are covered under transmission of business. Having said that, the High Court recently made a decision that overturned a part of those judgments that were made in the Federal Court, but there are still areas of uncertainty, and I presume the government would like to see some of those areas rectified in favour of the employer.

For my own purposes today, rather than just talking about the number of provisions and continually emphasising the inequity, I would like to refer to a specific case where, if this bill were to be passed, workers would be left with no relief whatsoever. I refer to a company that bid for work under the Kennett government's compulsory competitive tendering provisions in 1998. Silver Circle was a contractor which employed home carers to undertake work for the elderly and the aged. Under the instruments of the compulsory competitive tendering legislation that was in place at that time in Victoria, Silver Circle bid for the work that was then being undertaken by employees of the Greater City of Dandenong. There were 90 home carers at that council who were getting paid about $11 an hour. Their job was to undertake the care of the disabled, the infirm and the aged, and they were the lowest paid local government employees in Victoria. They were permanent workers whose work was put up for competitive tendering and they were subject to that bid. This was not a group of workers against another group of workers. Notionally, people could think that, when you have competitive tendering, you have two sets of workers competing for the same work, but that was not the case. This company had no workers putting in a bid to undertake the work for $9 an hour, even though they had no work force for that contract at that time.

Those home carers working for the Dandenong City Council refused to yield to that level. They refused to accept that their conditions of employment—historically and relatively low compared with all other employees in that workplace—would change for the worse and refused to accept that they would have to go lower than $11 an hour. Therefore, they chose to put in the bid on their own conditions of employment, tendering for their own work—and many of them had been working there for more than a decade. So they put in the bid on their own conditions—they were not fantastic conditions, but that is what they chose to do—and they lost their tender and were all sacked. So 90 home carers who had been looking after 1,000 recipients of care—the elderly, the infirm and the aged—were sacked.

Interestingly, within a week Silver Circle asked whether they wanted to be employed with them—not only to come back and do some work but also to look after the same clients they had been looking after when they were paid $11 an hour—and offered them $9 an hour. The only quantifiable change in the circumstances of that transmission of business—which is how the member for Blair likes to refer to these `great innovations' and savings that will be made if we pass this bill—from Dandenong City Council to Silver Circle was that the lowest paid workers in local government, who had been undertaking the care of the elderly and the aged, lost $2 per hour. They went from $11 per hour to $9 per hour. That is an absolute disgrace. I suppose it is easy for the member for Blair to get up here and rail against the views being put here because he could plead the defence of ignorance; otherwise, he would be ashamed to argue in defence of this bill, and I will tell you why.

We took the matter up. Those workers stood together and chose not to accept the decision that they were to lose their employment with Dandenong City Council, and they sought relief before the Federal Court of Australia. So we had the wigs at the bar table for the state government, the Dandenong City Council and Silver Circle against those workers. The wigs at the bar table were arguing why it was quite right that those workers, who would have been doing exactly the same work they were doing only a month before, should be paid $9 per hour, not $11 per hour, to look after the elderly and the infirm in our community. That argument was being put at the bar table. Fortunately, a simple provision of the Workplace Relations Act ensured that the company settled on accepting that they had to be bound by the Dandenong City Council agreement which contained the conditions of employment of those home carers, because section 170MB, which is referred to specifically and constantly through this bill, did not allow an employer to argue before a commission that they could change the conditions of employment of those employees as a result of a transmission.

Unlike with the qualification in section 149(1)(d), which goes to transmission of business under an award, the conditions in a certified agreement under the Workplace Relations Act are not able to be obviated by the new employer in a transmission of business. That is the effect of the provision which exists now. This government wants to remove the protection afforded to those low-paid workers who look after the elderly, the infirm and people with disabilities. It wants to remove the protection currently in place that allows those workers—by the way, it took 18 months of them sticking together to fight for their rights—to be in receipt of just $11 an hour to look after those people in need. That is what will happen if this bill is passed. It will allow an employer to seek an order from the commission that would diminish the workers' entitlements—and, with all due respect, with the way the commission is operating at the moment, the employer would have quite a good chance of having that order made. In other words, in the circumstances of the Silver Circle case I referred to, it would mean the capacity to diminish the workers' conditions, to get them to accept that they could be moved from $11 an hour to $9 an hour. I do not think any reasonable person would think that a fair outcome for hardworking people who undertake work that many of us would not want to undertake—and for little money. I will accept that the member for Blair's comments arise out of ignorance, because I cannot believe that anybody in this place, if they fully understood the consequences of not providing protection for certified agreements, would accept that home carers—or any workers, for that matter—could lose their entitlements in the circumstances I have just mentioned.

This bill has effectively been rejected twice already in other forms, and for good reason. There is no genuine reason to not accept that workers who have reached agreement with their employer are not entitled to expect that undertaking to be transferred to the new employer. Why would you not accept that? That employer would have other contractual obligations, for example—no-one is asking that those contractual obligations be obviated or removed as a result of the transmission. There seems to be no argument to support this legislation, only a blind ideological pursuit of diminishing ordinary working people's wages by using the Workplace Relations Act. Something smells when you have a government that eschews providing powers to the commission now asking us to accept that the commission should have the power to make an order. There is something ironic in that. Clearly, it is because the government wants to confer a power on the commission that could only eventuate in the worsening of employees' entitlements as a result of the transmission of business.

I ask this parliament to reject this bill because it is unfair and it is pernicious. In the case of Silver Circle it would mean that those workers, who undertake such a valuable service to this community, would be on poverty-line wages. This bill should therefore be rejected. In the event that it is not, I would be asking that the amendments we put forward on this side be accepted because they would provide the means by which the work force in this country could at least have some degree of protection when this provision is applied in the real world.