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Tuesday, 25 November 2003
Page: 22782


Dr EMERSON (7:37 PM) —I am pleased to indicate that the opposition in the House will support the Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002. The government's most recent amendments to the bill put Labor in the unusual position of being able to support the passage of a Howard government workplace relations bill. When I was appointed to this position, when the current Minister for Health and Ageing was the Minister for Employment and Workplace Relations, I said that, if legislation were put forward by that minister, it would almost certainly be against the interests of working Australians and therefore, if it were against the interests of working Australians, we would oppose it.

Nevertheless, I indicated that in the event that the Howard government were to put forward a bill that was in the interests of working Australians—and in this case it is in the interests of disadvantaged workers in Victoria—we would look favourably at that. I am carrying through on that commitment today by indicating our support for this bill, but we will be moving a second reading amendment condemning the government for taking four years to agree to these urgent amendments and for seeking to undermine the effect of this bill through the actions of the Employment Advocate and through the ongoing pursuit of the Workplace Relations Amendment (Choice in Award Coverage) Bill 2002, which philosophically contradicts this bill and seeks to undermine it.

The bill signals the end of a decade of neglect of some of Australia's most disadvantaged workers by conservative governments in Victoria and Canberra. Now, thanks to the determined efforts of the Victorian Bracks Labor government, the federal government has finally agreed to amend the Workplace Relations Act to assist these disadvantaged working Australians. I pay tribute to the Bracks government and, in particular, to Minister Rob Hulls for his diligence and dogged pursuit in this regard and to his predecessor, Monica Gould, who did that as well. As a result of their persistence, patience and doggedness, this bill has come to pass through this parliament.

How did we get to the point where we needed to consider legislation that deals with the plight of 400,000 disadvantaged workers in Victoria? What is the problem that this bill seeks to resolve? It all started in 1993 with the election of the Kennett government, which quite early on in its reign over Victoria—some would say a reign of terror—abolished Victorian state awards altogether. It was a dramatic move and one that was calculated to disadvantage workers in Victoria, and it certainly had that effect in respect of 400,000 workers, who remain disadvantaged to this day.

The system of awards that we have, both state and federal, is the foundation of fair terms and conditions of employment in this country. State and federal industrial relations systems traditionally work in parallel and complement each other, but the abolition of Victoria's awards and the whole industrial relations system in Victoria left a gaping hole in the protection of workers in that state. State awards provide fair conditions of employment through awards that are based on industry or occupation, and those awards apply to all employers within their scope in that state. These awards with across-the-board application are called common rule awards. For constitutional reasons, the federal system does not have common rule awards and is restricted to the resolution of interstate disputes. The Australian Industrial Relations Commission can make awards, but these awards are limited in their application to the employers named in them. So the constitutional device is to create an interstate dispute and then name employers in the awards that are then struck. I point out that there is an exception with respect to the territories, where the constitutional limitations do not apply and common rule awards can be made.

In respect of standard federal awards, it is up to trade unions to keep the relevant lists of employers up to date by applying to the commission to have non-award employers or state award employers bound by a federal award. It is quite difficult over time to keep these lists up to date, no matter how vigilant the union is. It is also a lengthy and costly process for a union to undertake. In all other states these gaps in the federal award system are filled by state awards, but, since Victoria has no state awards, more than 400,000 employees have no award minimum conditions to protect them. In 1996, when the Howard government was elected, these 400,000 workers were totally abandoned by the Victorian government, with the referral of the bulk of Victoria's industrial relations powers to the Commonwealth.

Who are these 400,000 workers? They are amongst the lowest paid workers in Victoria. A disproportionate number of these workers earn the bare minimum wage. In fact, around 42 per cent of these workers earn the minimum wage, compared with 26 per cent of federal award workers. These employees are now entitled to only five substandard conditions contained in schedule 1A of the Workplace Relations Act. I will go through those five conditions.

The first condition is a minimum hourly rate of pay for the first 38 hours worked. This is the same rate of pay for work at nights, weekends or public holidays. It also has the Third World effect that employers are not required to pay employees at all for hours worked over and above 38 hours a week, and there is absolutely no restriction on the number of hours or the times of day that employees can be required to work. The second substandard condition is four weeks annual leave but with no annual leave loading. The third condition is five days sick leave, whereas the usual award standard is 10 to 15 days. The fourth of these substandard conditions is unpaid parental leave. The fifth condition is a period of notice for termination of employment but with no entitlement to severance pay if the employee is dismissed because of redundancy.

This means, for example, there is no bereavement leave at all. There is no entitlement to even one day off, not even as unpaid leave, if an employee's spouse or child dies. That is pretty Third World. It also means that there is no limit on the number of hours or the times of day that an employee can be required to work. So the employer under these schedule 1A basic five protections, such as they are, can say, `You have to come to work three or four times today,' or, `You have to come in at night,' and the employee has no protection against that. It is absolutely at the whim of the employer.

In addition, this means no accident pay, no other types of leave, no allowances for work related conditions or expenses and no dispute resolution processes. Not surprisingly, these poor minimum requirements are reflected in the actual payments and conditions received by these employees. Only six per cent of schedule 1A workplaces pay shift allowances, only 24 per cent pay higher rates for weekend work, only 35 per cent pay any annual leave loading at all, and only 41 per cent pay overtime rates. So it is pretty clear that these are substandard provisions. Of course, all of these entitlements would be standard in federal awards. So schedule 1A creates a dual system in Victoria: a substandard set of conditions for the 400,000 award-free workers and another set, with 20 allowable matters, for workers under federal awards.

In 2000 the Bracks government in Victoria undertook a review of this dual system and, not surprisingly, it found that the system was seriously flawed and needed fixing. The review took public submissions and uncovered some of the sad stories of these workers, whose vulnerable position was often exploited. I will now refer to some case studies from a Victorian government publication of October 2000 entitled Voices from the workplace: submissions to the Victorian Industrial Relations Taskforce. Ryan was a branch manager at a local computer store that trades seven days a week. He said:

All staff are expected to work public holidays and, no matter what their qualifications, receive $5.00 per hour extra. There is no extra pay for Saturdays, Sundays, or for late night opening. As the Branch Manager I have all the usual responsibilities you would expect plus those of security, so when the burglar alarm goes off at 3am, I have to attend. I am not paid for this attendance. I asked for payment and received none.

All staff are expected to open-up/cash-up and close in their own time.

Norman has worked for 10 years as a nursery hand in a wholesale nursery. He said:

When I started work, there I was employed under the old state award system, with all the entitlements that went with it.

In 1993 when the Kennett government introduced the workplace agreement, my boss told me I had to sign a schedule 1A agreement. I did and under that agreement I lost my penalty rates for weekend work, my R.D.O's, my 17 ½% loading and my rights as a worker.

He went on to say:

If I work a weekend day or public holiday, as I often do, I get a flat rate of pay for those days the same as a normal day.

... ... ...

I only hope the system changes so we can get back what we are entitled to.

The unfairness of this dual system is patently obvious. It is unfair to workers, but I also point out that it is unfair to business. Perhaps that is the reason that the Howard government finally did move. Approximately half of Victoria's small businesses—that is, those with fewer than 20 employees—are covered by federal awards. This is about 100,000 businesses. They compete with other businesses that are award-free. During the Victorian government's review, employers were openly critical of this uneven playing field. Another submission to Voices from the workplace was from the Mildura Fruit Company, supported by a number of other local employers, including Sunnycliff Orchards and Select Harvest. It said:

Our company [Mildura Fruit Company] is respondent to the federal agriculture award. We operate in an extremely competitive environment under seasonal conditions. In this context, we support the view that there should be a floor to competition.

It is extremely difficult to remain competitive while some companies operate outside of the federal award. These companies are not required to provide penalty rates, severance payments or award pay rates. This reduces their labour costs in a manner that imposes an unfair competitive advantage against those who wish to provide acceptable minimum conditions for employees.

Employer associations such as the Victorian Road Transport Association are also opposed to the dual system. These concerns from employers and employees form the basis of the Victorian Labor government's opposition to the system they inherited from their conservative predecessors. The Bracks government set out to remedy the situation. From the time that it came to office in October 1999, the Bracks government was committed to fixing this unfair dual system. Its policy was to do so, if possible, by achieving changes to the federal Workplace Relations Act. But, if the Bracks government could not convince the federal government of the need for such changes, it was committed to establishing a state system to provide decent award conditions of employment for these 400,000 disadvantaged working Victorians.

The Bracks government repeatedly asked the federal government to amend the Workplace Relations Act. The then minister refused these requests. In desperation over the then minister's refusal, the Bracks government then attempted to pass state legislation to address the issue. The legislation—the Fair Employment Bill—was blocked by the Howard government's Liberal Party and National Party colleagues in Victoria's upper house. Then a new federal workplace relations minister came along—the member for Warringah and current minister for health. The Victorian government asked again: `Please get rid of this unfair dual system.' But the minister also refused this request, and he did so repeatedly. In November 2002 the ground shifted in Victoria. There was a state election and the Bracks government secured a historic majority in the upper house, allowing it to pass legislation to finally remedy this unfair dual industrial relations system. The Bracks government now had genuine negotiating power with the Howard government.

The employer groups in Victoria did not want a new state system. So, finally, after all these years of requests, the Howard government agreed in principle to this proposal. Many months passed. The Victorian government was losing patience, repeatedly asking the Howard government how and when federal legislation could be introduced to get rid of the dual system. Then a third workplace relations minister came onto the scene—the member for Menzies. The member for Menzies managed to do what the member for Warringah could not: he closed the deal. He reached agreement with the Victorian government about the amendments required to end a decade of blatant unfairness. In these negotiations the Victorian minister, Rob Hulls, was very firm and tough, and in the end the federal minister agreed to this request.

The result of the deal is this new set of amendments before us in the parliament. The new amendments take a big step—a welcome step—in allowing the Australian Industrial Relations Commission to make common rule awards in Victoria. This will allow unions to apply for existing federal awards to apply across the board in Victoria without the need to list each individual employer. Of course, we contend that there are still issues in this bill that could have been handled better. I will foreshadow a couple of them. The 12-month delay before common rule awards can apply is one, and the other that I refer to is the only very minimal improvements to the five conditions in schedule 1A. Both of these are disappointing, and we will be having more to say about these when this bill makes its way into the Senate.

But the bill does finally start to redress the injustice endured by these 400,000 workers. I welcome the agreement between the state and federal governments that facilitated the development of these new amendments. But, true to form, the Howard government and in particular this Minister for Employment and Workplace Relations are doing one thing through the front door and another through the back door. The bona fides of the minister for workplace relations must be called into question by the existence of another workplace relations bill, which seeks to do almost the exact opposite of the bill before us here today. Senator Reg Withers said, many years ago, that consistency is the sign of a small mind. I do not think this government can be accused of consistency in this regard.


Mr Murphy —The toecutter!


Dr EMERSON —He was indeed known as the toecutter. There is a massive inconsistency between the government's willingness to pursue this bill's passage through the parliament and, on the other hand, its insistence on continuing to pursue another bill which has quite the opposite effect. The bill today will ensure that as many Victorian employers are covered by federal awards as possible. But the other bill, which was debated in this House just three weeks ago—and the debate is not even completed—seeks to do the opposite. The Workplace Relations Amendment (Choice in Award Coverage) Bill 2002 would make it almost impossible for small business employers to become bound by federal awards. The glaring inconsistency—the one which Reg Withers would see but which this minister appears not to be able to see—is breathtaking. One increases award coverage and the other severely restricts future award coverage.

So what is going on? Does the minister for workplace relations believe broader award coverage is the way to go or does he not? Or is he completely unaware of the inconsistencies that even former senator Reg Withers would be able to see? I say that, to be true to the intent of his agreement with the Victorian minister about the ending of this unfair dual system, the minister for workplace relations must withdraw the choice in award coverage bill from this parliament and never let it rear its misnamed, ugly head again.

But, sadly, this is not the only sign from the minister that he is not fair dinkum about protecting Victorian workers. This government established the Office of the Employment Advocate. The Employment Advocate has a web site, which encourages Victorian employers to avoid any new award responsibilities by putting employees onto the notorious Australian workplace agreements. The web site says:

Recently, the Victorian Government announced its commitment to ensuring that all Victorian workplaces worked with the Federal Award system ...

... ... ...

Awards can be lengthy, confusing documents that are hard to read and interpret ...

It goes on to say that AWAs, once approved, replace the award. Once again the Howard government has been found out to be two-faced, mean and tricky. On the one hand it is saying to the 400,000 disadvantaged Victorian workers: `Good news! We're putting through legislation that will end the disadvantage that you have endured since 1993—a decade now.' On the other hand, the minister has his Office of the Employment Advocate posting on the web site ways of getting around these new award conditions by encouraging employers to sign their employees up to AWAs, the weakest form of agreement for any employee. This is a sneaky government, and this minister is demonstrating that he is two-faced, saying to these disadvantaged workers on the one hand, `We're going to look after you,' but on the other having the Office of the Employment Advocate going around the back, saying to employers that there is a way to avoid the very legislation that the minister is putting through the parliament.

This bill, even with the amendments, is no act of generosity by the Howard government. They would be quite happy to see the current injustices continue. But they have been forced into making these concessions by the threat of the Victorian government re-establishing its own system, a threat that employers would not like to see carried out. It would be with considerable reluctance that the Victorian government would do this. But, given that it now has a majority in both houses, it is capable of doing it. Only through that capacity has it been able to secure sufficient bargaining power to be able to approach the current minister and indicate that if the current minister did not put through acceptable legislation then with considerable reluctance the Bracks government would re-establish the state award system. In a sense, the Victorian government had the federal government over a barrel on this one. It is only in those circumstances that the federal government has rolled forward with this legislation.

It is clear that, through its other actions, which I have just described, the Howard government is gritting its teeth and is only reluctantly providing these disadvantaged workers with award protection. Even when it agrees to do something positive after years of pleading and begging to do the right thing, the Howard government cannot help itself. It goes around the back and undermines its own commitments. We see this all over the place. Time will not allow me to go into great detail—even though I could—about how the government says one thing and does another around the back.

Nevertheless, Labor are pleased to support this bill. We applaud the end of an appalling situation of minimum conditions being applied for non-award workers in Victoria. It has been far too long in coming, but today is a happy day for 400,000 disadvantaged Victorian workers. It is a pretty good Christmas present to know that one day fairly soon they will be entitled to basic protections like bereavement leave and overtime rates of pay. But I call on the new minister to stand by his deal to fully support the full operation of these amendments and not to undermine them with other measures by going around the back or with other legislation he has in the parliament.

Apart from a piece of legislation related to SES workers who were engaged in firefighting, it is very difficult to remember this parliament, since the election of the Howard government, dealing with any workplace relations legislation that was in the interests of working Australians, in the interests of collective bargaining if employers chose to bargain collectively or in the interests of ensuring that there was a powerful, independent umpire to adjudicate and arbitrate when disputes could not be resolved by the parties.

By my count, this government has now put only the second piece of legislation since 1996 into the parliament with which we could agree. I do point out that there are still a number of matters on which we will be seeking further clarification as this bill makes its way to the Senate. But, you never know, stranger things have happened. Maybe the minister will turn over a new leaf. Maybe, buoyed by the fact that he is facilitating the passage of legislation that will end a decade of neglect and disadvantage for 400,000 Victorian workers, he will see the light. Maybe the minister will think, `Before Christmas I could do a few other things that would be to the advantage of working Australians.'

I can name a dozen things that he could do that would be to the advantage of working Australians. In fact, I could name a baker's dozen. In relation to the dirty dozen bills that are in and around this parliament that the minister has introduced—one of which is already a double dissolution trigger and another of which is heading that way—perhaps he could now say that it is time to give working Australians a bit of relief, that it is time to say `merry Christmas' to working Australians and that the Howard government will not proceed with withdrawing the right of working Australians to take industrial action where it is absolutely necessary.

As one of the baker's dirty dozen bills this minister has a piece of legislation that would effectively withdraw the right to take industrial action. It is targeted, as described in the second reading speech, directly at nurses, hospital workers, teachers and academics—some of the most respected people in this country. There are many other bills, all of which are designed to weaken the bargaining capacity of working Australians and to strip away the safety net that protects Australians' working conditions and wages from falling through the floor. There are 13 of these bills in and around the parliament.

I call on this minister, who may have a small sense of Christmas spirit, to say, `Perhaps I can make a few other working Australians happy by not persisting with these dirty dozen bills and with the extra bill'—a bill which he has personally sponsored in this parliament. He inherited the dirty dozen, but this other bill is especially pernicious. It is arguably the most vicious bill that has been introduced into this parliament since the first wave of industrial relations changes in 1996. It would effectively allow any third party or any person who might be affected, actually or potentially, by industrial action to go to the commission and suspend the bargaining period. The minister is sponsoring that piece of legislation; he has introduced it.

He has also introduced the Building and Construction Industry—so-called—Improve-ment Bill, but that too is a bill that will weaken the capacity of working Australians employed in the building industry to bargain collectively to protect their wages and conditions. It certainly weakens the right of entry of safety experts from unions into workplaces in the building and construction industry—an industry which suffers, on average, one fatality a week.

So the dirty dozen bills plus the baker's dozen bill—the 13th bill—puts working Australians in a position where effectively their rights to take industrial action have been removed. If you add to that the 14th bill, the Building and Construction Industry—so-called—Improvement Bill 2003, you have a litany of legislation that is against the interests of working Australians. But this bill is one that we can support in the House. Therefore, I move:

That all words after “That” be omitted with a view to substituting the following words:

“while not declining to give the bill a second reading, the House condemns the Govern-ment for:

(1) taking four years to agree to these urgent amendments; and

(2) seeking to undermine the effect of this bill through the actions of the Employment Advocate and through the Workplace Relations Amendment (Choice in Award Coverage) Bill”.


The DEPUTY SPEAKER (Hon. D.G.H. Adams)—Is the amendment seconded?


Mr Murphy —I second the amendment.