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Monday, 7 November 2005
Page: 92


Mr ANDREN (6:22 PM) —Let me say from the outset that I oppose the Workplace Relations Amendment (Work Choices) Bill 2005, as do the great majority of fair-minded Australians. In my many contributions on the various workplace relations bills the government has brought before this House since 1996, I have approached the legislation with what I believe has been a considered and practical analysis of the issues and their likely impact on employers and employees. I have supported the government’s exemption of small businesses from the unfair dismissal regime, as I have defended the Australian Industrial Relations Commission against the same government’s relentless attempts to undermine the authority of this important and independent industrial umpire.

The government’s conduct with this latest and largest omnibus bill and its lack of respect in presenting 700 pages of legislation with less than 24 hours to analyse it, before the beginning of this second reading debate, is deplorable. What I have been able to assess from the so-called Work Choices bill since last week gives me no reason to support it. There is absolutely no reason for these so-called reforms except, I believe, to drive down the cost of labour and to advantage the corporate bottom line. That will be good for the shareholders but not the Australian workers, who face negotiating their own way in the workplace under the deceptive government mantra of ‘choice and flexibility’. This reform package is certainly not simple and certainly not fair, and $55 million worth of advertising is not going to change that. This waste of public money for political purposes is outrageous, and that is the feedback I get wherever I go.

This sort of money could have been used to tackle respite and emergency response measures identified in the Not for service report into the mental health crisis in this country, which is a national shame. In Calare it could have rebuilt Kelso High School, destroyed by fire earlier this year, with change left over to start the new base hospitals for Orange and Bathurst and their surrounding districts. To have to spend $55 million to sell a policy suggests it is not worth supporting in the first place—as most Australians are saying, despite the campaign, with very little movement in public opinion on this piece of legislation.

A letter from Michael Sinclair-Jones of Maylands, Western Australia, to the Australian last week stated:

The Prime Minister says ‘we are labouring under a workplace system that was largely designed over a century ago to deal with the problems of a different time in a different world’. Nothing could be further from the truth.

The letter goes on:

The system’s founding father, High Court Judge Henry Bournes Higgins said in 1907 that the minimum wage for an unskilled worker must not be decided by ‘the usual but unequal contest, the higgling of the market for labour with the pressure for bread on the one side and the pressure for profits on the other’. A civilised community must protect workers with ‘something which they cannot get by the ordinary system of individual bargaining with employers’, he says.

According to the Australian’s correspondent:

Mr Howard wants to turn the clock back to the 19th century with a forced return to non-union individual bargaining. ‘We cannot afford to go backwards’ he says. But that’s exactly what his new laws will achieve.

I am indebted to Michael Sinclair-Jones for that precise summary, in historical context, of what we have here: not ‘going forward’, to use the nonsense jargon of the business would-bes, but going backwards into the 19th century. There is no need for these changes, and they are ideologically driven.

The usurping of state powers; the replacement of the independent umpire, the AIRC, with the Fair Pay Commission; the fair pay and conditions standards; the gutting of awards and their eventual replacement as workers inevitably move from job to job in an increasingly casualised workplace; the abandoning of the no disadvantage test; the transfer of AIRC powers to the minister; the extension of unfair dismissal exclusion to corporations employing 100 or fewer; and the exclusion of unions from workplaces—all these are direct attacks on equity and fairness in the workplace and tilt the scales decisively in favour of the employer. AWAs and collective agreements will now bypass the Australian Industrial Relations Commission. There will be no independent audit of the content of agreements. Perhaps the government has decided that that little formality is unnecessary anyway—the no-disadvantage test has gone, so why the need for any independent audit?

On top of that, we have the wonderful freedom—or ‘flexibility’, to use the government’s jargon—available to workers to trade off penalty rates, if they still exist, and public holidays, meal breaks and annual leave for extra ordinary time pay. As well, the ordinary 38-hour week can be averaged over a year. Just imagine the worker who trades in his leave and works long hours before Christmas but has no leave to compensate. Of course employees will take the money—they need it to meet the huge financial commitments of Australian families, more and more of whom are substantially underemployed.

To suggest the fair pay commissioner’s stated aim of getting unemployed people into work is some sort of justification for a lower minimum wage is to conveniently forget that unemployment is not our major problem. Underemployment is the problem, with as much as 28 per cent of our work force seriously short of enough work and income to meet commitments. Indeed, since 1988, 54 per cent of all new jobs created have been casual jobs. To reduce the minimum pay only to create more low-paid jobs is simply exploiting labour. Remember that it already takes but an hour’s work a week to deem one as employed. Four per cent unemployment does not mean 96 per cent have as much work as they want. Once upon a time it did but no more. Underemployment is the curse of the modern economy, and to suggest we should countenance reduced pay to put more people in work suggests incorrectly that those already in work have as much work as they need. Are they supposed to somehow share their hours? Are they just units of cost in a production line?

The Prime Minister and others so deceptively used the figure of 14 per cent—as did the previous speaker, the member for Corangamite—when lauding wage increases over the past 10 years. This was wrong and, if it was deliberate, cynical. The fact is that, when you remove the top 20 per cent of wages and salary earners from the equation—those people who can write their own meal tickets—you are left with about a three per cent increase in wages over 10 years and about a 1½ per cent increase for the lower 20 per cent of the work force. So much for being relaxed and comfortable, particularly with petrol prices as they are now.

Now you will be able to negotiate your own pay and trade in your leave to make up for the inevitable downward pressure on wages that will come about under this new regime. The great Australian dream of a full-time job—and a house one day, perhaps—will become a nightmare for the most vulnerable, while obscenely high salaries will continue for the top 20 per cent as Australia’s social division continues to widen.

Since 1996 I have voted in support of the government’s many attempts to introduce an exemption for small business from unfair dismissal regimes—first, for those who employ fewer than 15; then, for those who employ fewer than 20—on the basis that extensive consultation with small business had made it clear to me that it was indeed a serious impediment. I made it clear each time I spoke on the multiple versions of these unfair dismissal bills that that was the limit of my support. I was convinced that the unfair dismissal laws acted as a disincentive. I held to the belief that, for small business in particular, a relationship based on trust and cooperation made for a more productive operation all round.

In the government’s last bill that dealt solely with unfair dismissal, which was introduced earlier this year before the government took control of the other place, the minister reaffirmed the arguments of his predecessors in relation to this issue. Small businesses make up 96 per cent of all Australian businesses and, in a 2004 Sensis survey, 28 per cent of those indicated they had not taken on an additional employee because of the fear of unfair dismissal action. The minister also quoted from a report by the Centre for Independent Studies which indicated that change to the unfair dismissal laws could contribute to five per cent of small businesses each employing one extra person, thereby creating 55,000 jobs. In my contribution on that bill, I summed up my support for what I then considered to be the only reasonable proposition in the government’s workplace agenda. I said:

Small business margins are tight and they need a workplace where the employee and employer are part of a team. They cannot bear the expense of protracted unfair dismissal cases. In such a small business—and those that I have had constant contact with—with 15 or 20 employees there is eyeball to eyeball contact between the small business owner and his or her staff.

…            …            …

I will maintain my support for this legislation as it applies to small business until I am convinced it is having a serious impact on the rights of employees, as opposed to the rights of small business to offer jobs in good faith.

Regardless of that figure of 55,000, I stand by my initial assertion that small business owner perceptions of the unfair dismissal laws will be a deciding factor in decisions to employ or not to employ. I said that, on that basis, I would maintain the stance that I have taken to the electorate on two occasions—I will support this legislation on the proviso that, if I see any feedback that causes undue hardship and concern, I will oppose any subsequent legislation.

I cannot support the extension of the exemption from unfair dismissal to businesses employing up to 100, as provided for under the new subsections in the Work Choices bill that is before us. Businesses employing more than 20 people for the most part do have resources to challenge unfair dismissal claims. Given the hurdles that are provided to lodge such claims, the government’s previous arguments no longer apply. This fivefold increase in the threshold for the unfair dismissal is outrageous. There is no surer indication that the aim of the government is to remove unfair dismissal laws for every employer in this country, whatever the size of the work force, because it appears quite clearly in the fine print of this legislation. New subsections 170CE(5C) and (5D) bear this out. These subsections determine that a business, whatever its size, may terminate employees for operational reasons and that these employees will have no recourse to unfair dismissal laws.

Nobody doubts that in downturns there are retrenchments and cutbacks. There is a need to explain to people the reasons for that situation but, given the other concessions in this bill regarding unfair dismissal, it would not stretch the imagination at all to believe that we are enshrining in legislation the right for businesses with more than 100 employees to effectively use unfair procedures to terminate employees. ‘Operational reasons’ are defined in these subsections of the bill as follows:

... reasons of an economic, technological, structural or similar nature relating to the employer’s undertaking, establishment service or business or to part of the employer’s undertaking establishment service or business.

This definition seems to be very open to wide legal interpretation. I will support any measures to remove this apparent loophole and to reduce the threshold for exemption from unfair dismissal back to businesses with 20 or fewer employees. Indeed, my colleague the member for New England is working on such an amendment. This is in keeping with the government’s original intention that this protection be available only to small business.

I am also concerned that this Work Choices bill in a number of ways undermines the independence of our system of workplace relations from the government of the day. The bill effectively undermines the role of the Australian Industrial Relations Commission as the independent umpire in workplace matters and provides the Minister for Employment and Workplace Relations with certain unilateral powers. The institution of the AIRC remains but will no longer have a role in determining the minimum wage and conditions. This power will be transferred to the government’s new Fair Pay Commission. The AIRC will lose responsibility for the certification of collective agreements, with all approved workplace agreements, collective or otherwise, to be lodged with the Office of the Employment Advocate. As I understand it, an approved AWA is one that is signed and dated by both the employee and the employer. An approved collective agreement is accompanied by a statutory declaration explaining they were negotiated in accordance with section 98C. Agreements will come into effect on the date of lodgment, meaning there will no longer be a process for the approval of agreements outside of the workplace.

The abolition of the no-disadvantage test and the federal award safety net further remove the AIRC from the picture. The no-disadvantage test determined that an employee could be no worse off under an AWA than they would be under the wages and conditions provided under federal awards. The federal award safety net provided for 20 basic conditions of employment: employee classification and skill paths, ordinary hours of work, minimum rates of pay and so on. This list of bare minimum conditions has been culled to the five-point Australian fair pay and conditions standard. The only things that must be included in a workplace agreement will be: four weeks annual leave, or five for shift workers; personal leave of 10 days a year; parental leave, including maternity leave; an average of 38 ordinary working hours per week; and a minimum wage of $484.40, the 2005 national wage case minimum, which becomes the absolute minimum for wages from this year onwards. The 20 basic award conditions, or allowable matters, are to be reduced in section 116 to 16 allowable matters which may be preserved in an award or included in a workplace agreement but only as the result of negotiation between the employer and employees.

The minister stated in a 3 November interview on Lateline that the exclusion of particular conditions must be specifically stated in an agreement and that if this is not done the agreement defaults to the existing award and the conditions in question remain in force. The minister implied this was an additional safety net under Work Choices. However, as existing awards expire and are replaced by collective agreements or AWAs, this so-called default safety net will no longer apply.

Referring back to the minister’s assertion that existing awards will act as a default safety net for AWAs, I wonder if a regulation determining certain matters to be prohibited content could have the effect of removing this already tenuous guarantee for workers’ conditions. The object of the exercise seems to be to circumvent and eventually replace awards, so I would appreciate clarification from the minister and his advisers on the issue of prohibited content.

Determining prohibited content is not the only example of unilateral ministerial power I am concerned about. Under sections 112 and 112A of the new division 7 the minister may declare a specific bargaining period terminated. This is a unilateral, essential services power. If the minister believes the action being taken threatens ‘the life, the personal safety or health, or the welfare, of the population or part of it’ or could cause significant economic damage, any industrial action being taken in support of employees’ claims that began legally can be unilaterally declared illegal without reference to any other authority. Prima facie it may seem reasonable if we are talking about life and safety and health and so on, but this unilateral power surely needs reference to parliament. I have not supported such unchecked unilateral power in past legislation and I do not intend to start supporting it now.

Much of the government’s Workplace Relations Amendment (Right of Entry) Bill 2004 has been incorporated into Work Choices. I did not support the right of entry bill, as I believed its provisions would restrict a union’s ability to legitimately represent the interest of members. Union representatives are already required to have a permit from the industrial registrar and to give 24 hours notice. Most union visits to workplaces in Australia occur without incident several thousand times a day across the country. I cannot support this ramping down and eviction of representation, particularly when people are required more and more to represent themselves in very unequal circumstances.

More and more, workers are becoming units of cost to be replaced, laid off, called back, fired and rehired in the name of maximising profits. Last week congress in the US voted against raising the minimum wage by $1.10. It is now $A6.86 an hour. It has been there for 10 years.

In 1996 I supported the first raft of industrial reforms after the good work of the Australian Democrats, particularly Senator Murray. We have not got that now in the Senate; we have not got that check and balance. This bill is government by executive. It is undemocratic. It will not be amended substantially in the other place and therefore will not have my support. (Time expired)