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Wednesday, 25 June 2003
Page: 17527

Mr HATTON (5:10 PM) —The Workplace Relations Amendment (Transmission of Business) Bill 2002 is an unusual bill for this parliamentary session because it is a workplace relations bill that has not been knocked over already in the Senate. It is part of the broad set of disciples or apostles of the original Workplace Relations Act 1999 that did not get up. We have had division and fragmentation of that original bill. We have seen bills pass through in a prior parliament and get knocked on the head. We have seen them knocked back in this parliament.

This is an unusual bill. Prior to the dissolution of the parliament for the election in November 2001, this bill was probably on its way to that inevitable end in the Senate. We do not know, because it was not debated in the Senate and therefore, when the House and half the Senate were prorogued for the last election, this bill simply ceased to go forward. It has been introduced here as a bill from 2002; it will be interesting to see whether it will make it through as the volunteers bill has just made it through this House.

The shadow minister has proposed two lots of amendments: a general amendment which I will talk to in part, and then a series of very specific amendments which go to the question in particular of whether an employer is a successor, a signee or a transmittee. In relation to this bill and the matters dealt with by the Australian Industrial Relations Commission, that very question of whether an employer falls into one of those three categories is an important one when the commission is determining what actions to take. More broadly, the shadow minister has indicated that this will get a second reading but he has moved to condemn the government for:

(1) further reducing workplace democracy by removing the right of employees to vote on whether a certified agreement should not apply following a transmission of business; and

(2) further increasing job insecurity by enabling the termination of certified agreements, without employee consent, in corporate restructuring and contracting out.

Fundamentally, Labor has been opposed to this bill in the past. In arguing that, the member for Brisbane, a former shadow minister, argued well and eloquently in the previous parliament that this was a bill that should be knocked on the head because effectively, for all the rhetoric that the government uses in relation to these matters, it denied workplace democracy and denied the right of workers to have a part in determining their outcomes, conditions and proper standards of service within a business when a business was sold or otherwise moved and changed.

The excellent Bills Digest quotes the member for Brisbane arguing what he thought was one of the key problems with the bill. A sale of a business can be extremely straightforward. Company A may decide to buy company B and in doing so will be bound by commercial considerations and the commercial undertakings of that business. They will be liable at law for any liabilities of the company they are buying. But when you approach the question of the employees' rights and the certified agreement that binds those employees' rights, duties and responsibilities together, you have to ask whether or not this bill leaves open a vast chasm into which those employees' rights can fall. It is a question of whether or not some dodgy set of arrangements can be entered into to deprive the employees of what was hard won.

During the Hawke and Keating governments we moved towards enterprise agreements from the previous system in which the Australian Industrial Relations Commission operated with full awards covering virtually everyone in Australia. When they are done at a federal level, those enterprise agreements become certified awards. The core argument that has been put forward by the government in this bill is that, when a business is sold, there is a problem in that those certified agreements continue and the person who is buying the business may not be able to do anything until the term of the certified agreement is finished. What the government is saying here is, `We want to break that nexus. We want to allow the person buying the business to essentially rip to shreds that certified agreement and deny employees the right to have their say as they had before.'

We know that with enterprise agreements which have been changed into certified agreements at the federal level, or have been given that tag, the employees have usually taken a considerable period of time to come to an agreement with the employer. Particularly in the early years when this government was trying to make its changes, it was a long, arduous and difficult process for everyone involved. The core of the ALP's position when this was dealt with in 2001 was well expressed by the member for Brisbane. He said:

Potentially this could enable unscrupulous employers to short-change workers through corporate restructures or contrived sales to shelf companies. All an employer would have to do was set up a shelf company, apply for an order that the enterprise agreement not transfer and then sell the company to the shelf company. At this point, workers could have all their terms and conditions stripped away.

That was prescient. If you look at the history of this government in dealing with relationships between employers and employees, you will see that they have never been on the side of the employees. Through the original workplace relations bill and the waves of changes attempted by the former member for Flinders, Mr Reith, when he was Minister for Workplace Relations and Small Business, and now through Mr Abbott's attempts to prosecute the same agenda on a disciple basis, they have sought to break up the conditions of Australian workers by various means. They could have kept it in a single bill but they have not. Here we are dealing with a particular situation.

We do not know what is going to happen when this gets to the Senate. The government should take note of what we have said in our detailed amendments, including the ones concerning the Australian Industrial Relations Commission, and should agree to them. That would make this a more reasonable and responsible bill. But at its core it is inflexible and irresponsible, because it is only directed towards the benefit of one of the parties: the employer. Labor have argued previously and argue now that the conceptual flaw in all of this is that it is just about stripping away rights from workers. It is about allowing a mechanism in going from one employer to another to break what was a costly set of agreements to make in the first place, and to do so in a way that provides an incentive for the person buying a business to strip away all of those terms and conditions and start from scratch.

In commercial and equity law there is no provision to strip away all the liabilities of a company for super, long service leave and other conditions, but this may happen as a result of the Workplace Relations Amendment (Transmission of Business) Bill 2002 going through. There are certainly no provisions to say that, just because a business is being sold, the tax liability that company has built up or its commercial liability for moneys owed to people for goods or raw materials should be thrown out the window. The core question you have to ask is why there should be a different order of values and a different way of going about things in dealing with employees and workplace relations.

The Bills Digest covers pretty well the historical position of the ALP and the Democrats at the time of the original legislation. Whereas the Democrats previously had a concerted position, we do not know what position they will take now. I think that the core of this bill and the difficulty it faces is best expressed in evidence given by the Australian Chamber of Commerce and Industry to the Senate Standing Committee on Employment, Workplace Relations and Education which looked into this. The ACCI made a simple statement about proper business practice and where there may be difficulties that they would seek to redress. Referring to the lack of AIRC authority to terminate an extant certified agreement in a purchased business, they said:

A business is looking at acquiring or merging or expanding their business to acquire a similar operation and the business that they are looking at acquiring has a certified agreement. As the law currently stands the acquiring employer cannot seek to modify that current agreement while it is nominally in force, and the acquiring business is looking at a new certified agreement but it cannot take any steps in its proposed agreement to deal with staff of the business under the earlier certified agreement, because the priority system provides that a prior made and non-expired certified agreement is not affected by a later made certified agreement. 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.

What is their fundamental complaint? That the system of certified agreements—enterprise agreements—which business has demanded, championed and called for may have a few problems. They wanted—they demanded—to go down this track; they said that they really did not want the Australian Industrial Relations Commission to be involved. There were a lot of champions in the Australian Chamber of Commerce and in Australian business groups that said: `We don't want anything more to do with the operation that has been around since 1904 or so and that brought us the Harvester agreement and awards both simple and complex and dealt with the key structures of Australia's industrial relations system. We don't want any of that. We want to push down a new path and run everything in terms of an enterprise.' Guess what? There are outcomes when you go down that track.

For all the flexibility provided during the Hawke-Keating years with the introduction of enterprise agreements and their transmogrification in the last seven years into certified agreements at the federal level, there are simple, fundamental realities: if you adopt this approach and say you do not want an independent umpire—you do not really want an arbitrator or a conciliator to be part of that process and you do not want an award structure—why should you run off to the ref, in this case the government, and say, `Give us back just that bit of the Australian Industrial Relations Commission that we sort of think we need'? That is the core of what is going on in this bill.

This bill says that the structure is set up under enterprise agreements. But the structure rigidly enforced at the enterprise level by this government and demanded by many in the business community—and those who would go further, as the former minister for workplace relations did and certainly this current minister would—attempts to take that enter-prise-level certified agreement and break it into its constituent parts to attempt to achieve Australian workplace agreements on an individual basis from one end of Australia to the other. You would have the same sort of problem, wouldn't you? Whether they are certi-fied agreements or Australian workplace agreements, when a transmission of business from one entity to another occurs there is no outside arbiter. Even where that transmission of business is not a shonky process, even where it is not designed to compel the employees to give up standards and conditions that are involved in either the certified agree-ment or the Australian workplace agreements, it is properly the case that those agreements run for a period of time.

If, as the ACCI argued, you have got one business buying a similar one and there are different certified agreements in place with the two entities, it is not beyond the wit or ken of those running that business to operate those two levels until they can negotiate a new certified agreement with their employees and then have those employees—as is incumbent upon the employees and the employer—sign up by ballot to that certified agreement. That is why it is called a certified agreement: you have a ballot at the end of the process to say that you agree to it. Part of the government's pledge in regard to this is to say, `When people have signed off on this process, they have got some ownership of it.'

What is being denied in the Workplace Relations Amendment (Transmission of Business) Bill 2002 is any ownership of the process by the employees at all. This bill will entirely cut them out. This bill will say, `Only an employer selling or buying has any real rights here.' That is what is fundamentally wrong with it. Not only can it be used to strip away all of the conditions that they have—to be used as a simple ruse, as was argued so cogently in 2001 by the member for Brisbane—but also it is designed to get the system that they have championed out of the hole that they are in. It is a confession that the Australian Industrial Relations Commission is not the monster that the coalition thought it was for all those years and that there is a place for the Industrial Relations Commission to operate, whether at an award level or an enterprise agreement level, to make conditions and judgments and to assist those who are employed and those who do the employing to come to a better set of agreements, whether on an award basis or on an enterprise-agreed basis.

So what we are looking at here is but one fraction of the entire mosaic of the coalition's approach to workplace relations. We are dealing with what seemingly, if you accepted the Australian Chamber of Commerce and Industry's approach, is just a technical problem in that certified agreements cannot be broken prior to their expiry. It is quite possible, of course, for the government to seek to make a series of other changes and to say that, when dealing with a problem like this, with the agreement of the employees within a company there may be a renegotiation as part of that sale process or a notification of the fact that the employees have a total stake in it and should be consulted in regard to it. You will not find much in relation to that at all argued by this government or sought here. This is entirely unbalanced. This is the rhetoric of democracy in the workplace without any of its actuality and without it being carried into practice. That is why, fundamentally, we on this side, standing up for ordinary working people—those people who are not stood up for but stood over by the coalition government—do not want to support the key thrust of this bill.

The shadow minister has put to the government not just the general argument and the general view that they have knocked this over by reducing workplace democracy but that they have also increased job insecurity by enabling the termination of those certified agreements without employee consent in corporate restructuring or contracting out. It is quite true—and this is the core of what this is about—that this is another set of messages to workers in Australian industries and factories, whether the business is new or old economy, that their rights, their responsibilities, their duties, their concerns and their conditions are still there on only a safety net basis and that this government would seek to whip away in any way they can any protections that are still there and available to those workers.

We know that the other 11 or so bills that the government has split the original bill into are very clear and very stark. Here it is masked by the practicality of what the Australian Chamber of Commerce and Industry argue, but I think it is fundamental to our rejection of this bill. This is not about employees' rights; it is about the reduction and the suppression of those. It is about putting the employer over the employee in an unfair, unkind and undemocratic way. (Time expired)