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Thursday, 11 August 2005
Page: 18


Mr CREAN (10:27 AM) —This bill is called the Building and Construction Industry Improvement Bill 2005; nothing could be further from the truth. This does not improve activities in the building and construction industry. It is ideologically driven, and if we go into the detail of what is contained in this bill and the amendments, which have subsequently been introduced but which have not been spoken to by any member on the government side, we can get a window into the industrial relations environment that this government will bring forward when we finally get to see its new wave of industrial legislation coming before the parliament.

The legislation is driven by ideology. It strips away the basic rights to collective bargaining and the right to strike. It runs against the international conventions. It reintroduces amendments that were unable to get up in the previous Senate—the coercive powers being extended to the task force that has been established in the construction industry. What it does is to make them much harsher. Initiatives that were considered by the Senate and mellowed have all been stripped away and snuck in without even being introduced as part of the original proposition. That is what this government is up to: underhandedness, ideology, never being upfront with the Australian electorate and always trying to run on the basis of division, fear and blame of the other side.

The only way to create a sound industrial relations climate in this country—and I have been involved in it for many years—is to find the common ground. You have to have a spirit of cooperation. You have to have both sides of the equation—employers and workers and their representative bodies—working together. Go to any international body now and, with all the complexity of issues, the constant theme you get is that you have to involve the stakeholders. This legislation excludes the stakeholders, strips away their rights and strips away basic entitlements.

This in part is a reintroduction of a previous bill which lapsed because the parliament went to an election last year. That broader legislation was the government’s biased response to a politically inspired agenda to single out for special attention one sector in our economy, the building and construction industry, and in particular the unions involved in it.

As the previous speaker, the member for Charlton, indicated, the Cole royal commission cost this country $66 million. It did find significant problems within the building industry. But, if you read the detail, you will see that it also identified that a number of these problems had emerged from collusive practices that the industry, the employers themselves, had entered into—that is, success money, failure money and little agreements on the side when contracts were missed. I agree that if there are inefficiencies in an industry a government has a responsibility to deal with them and, if that requires legislation, do it. But do not just sheet the blame home to one side, because that is the consequence of the government’s response to the Cole royal commission. There was one prosecution, as the previous member indicated. We know that there are many examples of bad safety practices on the job. But where are the recommendations? Where is the legislation before the parliament? Where is the urging by the government to the states to improve workplace safety and those sorts of things? You get the flavour of it: this is a singling out, an ideologically driven approach.

What the bill does is prohibit industrial action in the building and construction industry by unions seeking an enterprise agreement. This is an industry in which enterprise agreements have been entered into since the beginning of time. But this legislation prohibits industrial action in support of those agreements. It prohibits them and imposes very heavy fines, and in the case of the coercive powers that have been slipped in under the amendments it does not impose fines in certain circumstances—it is straight to jail.

Where is the understanding and the commonsense associated with that? It is blame, it is fear, it is division and it is bad industrial practice. This is a government that we know is intent on trying to establish AWAs, and good luck to it. If people think that AWAs serve their interests, they should be entitled to enter into individual workplace agreements. But understand that most industries in this country do not operate through individual activities. They have a flow of people. Think about it: in transport and in production there are a whole lot of individuals working in common. If you are going to negotiate fairness in the workplace, does it not make sense to ensure that that takes place as an agreement for the enterprise as a whole, not a collection of individuals? It is one thing to argue an AWA for a journalist, but it is not the same to argue one for a worker in a process line or a logistics chain or an assembly plant. It just does not make sense.

Whilst the Labor Party recognises that there can be circumstances in which people might have to argue individually—we have real problems with the AWA stream, but there are common law activities et cetera—we think it is absolutely stupid to deny the opportunity to negotiate collectively. That is what this bill does: it denies collectivism and it tilts the industrial relations framework in this sector massively in the direction of the employer, giving sweeping powers to the new task force. It is part of the government’s strategy to enforce AWAs.

We saw them try it in relation to the waterfront when we had the dogs and the balaclavas at midnight and the special legislation passed by cabinet to enable a company to strip its work force, take away all its entitlements and employ a new one. That is what they did with the waterfront, and we saw mass demonstrations against that. This is another ideological approach, and this time it is in the building and construction industry. It singles out building and construction industry workers and their unions. It excludes them from the right to collective bargaining. This collective bargaining right is embodied in ILO convention 98, which this country has ratified. It has been ratified since 1973 and was ratified by a previous Labor government. In effect, this bill is tearing up the principles inherent in that internationally ratified convention.

The legislation takes away the right to collectively bargain and the right to strike. It effectively ensures that industrial action in the building and construction industry is unlawful, and it effectively outlaws the right to strike. I see the advisers in the box smiling about this. This is true: that is what the legislation does. It is a foretaste of what we can expect from the new industrial legislation. I see that the Minister for Employment and Workplace Relations has come to the table. I welcome him into this place because I think there has to be some honest talking about the agenda that the government is pursuing.

I have mentioned before this question of the AWAs and the government’s fetish, its obsession, with establishing AWAs. Only two days ago there was an interesting case in South Australia dealing with the question of Australian workplace agreements. Remember, when Australian workplace agreements were introduced the Prime Minister made a fundamental promise, which was referred to in this chamber yesterday. His promise at that time was to guarantee that people would not be worse off. It was an explicit, rock solid, ironclad guarantee. That is what the Prime Minister said when he told us what would be the framework, the context, in which Australian workplace agreements would come into effect. We know he is no longer making that commitment. We have asked him time and time again; we asked him again yesterday in the  parliament, but he refuses to give that undertaking. So workers know that they are going to get dudded under the new legislation.

Let us just have a look at the record of what has happened to AWAs with the guarantee. This is very instructive. Two days ago a judgment came down in the Industrial Relations Court of South Australia. It was Yurong Holdings Pty Ltd v Deanna Renella. Yurong happens to run the Bakers Delight franchise in South Australia and Deanna Renella is a year 10 student who was employed by the Bakers Delight franchise under an AWA. This year 10 student was someone who the Howard government would have us believe is free to enter into an AWA and will not be worse off. In fact, what happened to Deanna is that she was presented with a standard issue AWA pro forma and told to sign it—effectively, ‘If you want the job, sign it.’ That is negotiation John Howard style—and the government have the gall to criticise the ACTU for its advertising campaign on television that depicts that very thing. This is what happened in this case; this has been to court.

She was presented with a two-page pattern Australian workplace agreement. Can you just imagine a year 10 student negotiating with the boss of the Bakers Delight franchise on her own with no support? She is supposed to, in the Prime Minister’s eyes, be there negotiating as an equal. It gave her a flat rate of $8.35 an hour, which is half of the adult rate of $16.70. The AWA provided for no annual leave, no annual leave loading and no sick leave. And John Howard is saying that this person will not be worse off. She was not alone. There were more than 50 AWAs approved in the same terms as this AWA. Isn’t it strange that more than 50 employees negotiating as equals with their employer all came to exactly the same position?

I also find it somewhat ironic that this is a government that will not allow pattern bargaining, as it calls it, in a collective sense in the industrial framework but is condoning and encouraging pattern bargaining in an AWA sense. It will not allow pattern bargaining, it will not allow collectivism for protection, but it will allow pattern AWAs to undermine, strip away, deny and disadvantage lots of Australians in this country—and vulnerable, young Australians. That is what this case shows. I believe, and I have always believed, that it is important to have an industrial relations framework, a legislative framework, by which the government encourages the holding of the ring. But it is always going to be a rotten system where the government takes sides, where it gets in and tilts the playing field and where it weights it in favour of one of the opponents in the contest rather than trying to get consultation and agreement.

But it is very interesting that, despite this terrible set of circumstances that this young girl faced, she did get justice in the court. The court ordered that Bakers Delight should pay the employee the deficiency and make up for the underpayment. They ordered something close to a $1,500 payment. I think it is very interesting to hear what a judge in our system—in the South Australian Industrial Relations Court—had to say about this practice. I ask the minister to keep this in mind when he talks so kindly about the advantage of Australian workplace agreements. This is what the judge had to say:

In considering this submission I leave aside for the moment the manifest disadvantage of the respective bargaining positions of a 15-year-old Year 10 student negotiating her terms with an experienced businessman.

This is the point I made before, that here is a judge who has to look at the facts and consider the circumstance that comes before him and he says it is unfair, that it is not an equal footing, because the employer is going to have it all over the individual. That is why unions formed. They formed to give a more effective countervailing balance to the circumstance. This government wants to strip away that collective support and that collective protection. The judge also accepted the employer had the right to make the acceptance of an AWA a precondition to employment. He accepts that that is the circumstance but goes on to say:

Irrespective of the fact ... this is hardly a matter of real choice from the employee’s point of view.

So there you have it. The government has created a circumstance where it talks the talk of choice but this judge says choice does not really exist. The report goes on:

But the “plain fact” ... was that the employee “was paid grossly less than she was entitled to as a minimum” under the State award.

The employer’s contention that the OEA had approved other AWAs in the same terms “does nothing to improve [the employer’s] argument”, Judge McCusker said.

The employer also argued the employee was part-time rather than casual, but the judge found that the award defined a part-timer as having a 12-hour weekly engagement, while the employee worked between 10 and 15 hours a week.

This is a stark example of this brave new world that this government wants our industrial relations system to embark upon. It talks the words of choice; it talks the words of freedom and the rights and flexibility. Flexibility downwards, that is what it is, and it is also reweighting the system so that the advantage that the employer has over vulnerable employees can be exploited to the hilt. I think that that is a very chilling tale of the circumstances.

The fact is that the only reason this young lady was able to get her money paid was that the employer had technically failed to lodge the AWA. That technical failing meant, according to the judge, that she was protected by the existing state law and therefore entitled to the back pay. But there are 50 other employees, and he expressed concern about the fact that, despite his being able to order restitution for this person because of the technical failing on the part of the employer, that would seem not to be redress for the other 50 who are being forced into this same insidious set of circumstances.

Little wonder the Prime Minister refuses to restate his guarantee of a no disadvantage test in this parliament. He gave that guarantee back in 1996 and it is worthless. We know the word of the Prime Minister has increasingly been shown to be worthless. But we are dealing here with people’s lives—their entitlements, their standard of living, their dignity and their ability to get a start in life and work their way up. What they are being taught here is that there is a society, a norm, an opportunity and a framework that enables those people to be exploited.

I think increasingly, as these examples come to the fore, and particularly when we see the unveiling of the government’s new industrial relations legislation, people will understand their vulnerability and the threat that they are under. That is why you are seeing masses in the streets protesting against what they understand to be the government’s law. Do not let John Howard ever say he is the best friend a worker has ever had. Ask Deanna whether she thinks the Prime Minister is her best friend. That so-called best friend introduced a system that enabled her to be paid half of what she was entitled to, and he calls that no disadvantage. Now that we have not even got a no disadvantage test, expect more of the same. This bill should be opposed because it reflects the very worst of where we should be heading in an industrial relations sense. (Time expired)