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Tuesday, 8 November 2005
Page: 47


Mr BRENDAN O’CONNOR (5:14 PM) —I would like to spend some of my time rebutting the member for O’Connor’s contribution, but I will not spend too long because in doing so I would be deeming myself irrelevant to this debate. The one thing the member for O’Connor failed to do today and indeed last night was to actually refer to the Workplace Relations Amendment (Work Choices) Bill 2005 that is before the members in this chamber. There were a number of things he did say, though, which caused me to smile. He made comment that he supported the Scandinavian model—


Mr Tuckey —25 years ago.


Mr BRENDAN O’CONNOR —in his first contribution. Twenty-five years ago—that is an interesting confession. I am not sure whether the then Leader of the Opposition, and obviously Prime Minister some years later—


Mr Tuckey —Do you know who he was?


Mr BRENDAN O’CONNOR —the Rt Hon. Bob Hawke, agreed with those sentiments. But one thing we do know is what the Hawke government believed in relation to industrial relations, the way in which you treat people in this country and the causal link between a decent industrial relations system and productivity. It believed that you work together to reach outcomes. You do not divide this nation in the way in which the Prime Minister seeks to do with the introduction of this bill. Therefore, I am disappointed that the member for O’Connor has decided to no longer agree that there should be some collaboration or cooperation between employers and employees at the workplace level, because to pit employee against employee is exactly what the Prime Minister is seeking to do with the introduction of this bill. This bill seeks to force honourable employers to consider putting pressure on their own employees, as one company after another will be adversely affected and pressured into reducing conditions of employment.

What I would like to do this afternoon, which might distinguish me from the member for O’Connor, is to actually make some comment on the bill that has been introduced, because there will be some significant changes to the Workplace Relations Act 1996 if this bill is enacted. There are some significant changes and they will have adverse impact upon most working people. There is no doubt whatsoever in my mind about that. I am from the union movement—and I make no apology about that; I want to make a number of comments about that too—but that does not mean that all I did before coming to this place was represent employees, although it is a proud part of my working life to have done so. I too, like other members in this place, have worked in factories. I have worked on assembly lines, I have worked in hospitals cleaning toilets and I have filled up cars at petrol stations. I have taken on many jobs in my life—many of them while I was studying at university—and I have rubbed shoulders with ordinary workers, as most people on this side of the chamber have. Therefore, they understand the consequences of this bill in a way that is real. I was most concerned last night to hear the member for Wentworth talk in abstract terms about the need to free the market so that we can be productive and ensure employment growth. I have to say I never got the impression when listening to the member for Wentworth that he had any idea what will happen to ordinary working people and their families as a result of the introduction of this legislation.

I return to the bill specifically, which is something no member on the other side of this chamber seems to have done so far in this debate. The introduction of section 89 of the bill will effectively remove the current section 89A, allowable matters. The difference between the allowable matters in the current act and section 89 in the proposed act is fundamental. There are five minimum entitlements: basic rates of pay, maximum ordinary hours of work, annual leave, personal leave and parental leave. Those five and those five only will determine the—euphemistically called—Australian Fair Pay Commission’s standard. Currently, in the 1996 act, we have 20 allowable matters. Firstly, we have classification of employees and skill based career paths—that will be gone. That means the efforts to ensure that wage rates are commensurate with skills in workplaces across this country will disappear. As a result of this legislation, there will be no requirement for employees, employers and indeed their agents to negotiate outcomes based on skills.

There will also be a removal of ordinary time hours of work, which means the spread of hours in industrial instruments will be removed. I heard the member for O’Connor talk about Sunday. The Labor Party is not against people working on Sunday necessarily—of course people have to work on every day of the week in certain circumstances, because society demands it. But what we do expect is that, if people are working extraordinary hours or they are working at times when they would far prefer to be with their families, they receive some reward for that. That is what we say. We do not proscribe the capacity for employees to work on Sundays; what we say is that there should be an acknowledgment that they work on those days and that they receive some remuneration as a result of the sacrifice they make which many other employees might not make. But that will be gone as a result of removing the allowable matters.

Further to that, other matters will be taken out of the act: long service leave and annual leave loadings. Public holidays will be gone from forming the minima—forming what is currently the no disadvantage test. They will be gone. I am glad the member for O’Connor can stay and listen to this. Allowances will be out of that standard and loadings for working overtime and for casual or shift work will be expressly removed, as will penalty rates, redundancy pay, notice of termination, stand-down provisions, dispute settlement procedures, jury service and superannuation. Those matters may be, and in some instances are, protected by Commonwealth or state acts, but the fact is that the majority of those provisions are not protected and will be removed upon the enactment of this bill. They will be removed from the minimum standard that most Australians and their families have come to understand to be their working, living wage. That is the fundamental problem with this bill.

Moving on from that, in the same clause the no disadvantage test is being removed. I think it is important to explain the test because I have not heard anyone on the other side of the chamber actually refer to the no disadvantage test; nor have I heard any member of the government explain what it effectively means. Either they know what it means and they do not care or they have not properly considered the bill. Let me explain, for those who do not know or do not care, that removing the no disadvantage test will effectively allow an employer to change the conditions of employment of an employee, or a set of employees, where they will be grossly disadvantaged, because the only benchmark that they will have to compare those prospective conditions of employment with are those five minimum standards that have replaced the 20 allowable matters.

I also understand—and, again, I am not sure every member of the government does understand—that the no disadvantage test is by no means perfect, because it does not necessarily protect current entitlements. But it is a much greater guarantee for employees in this country than the substandard definition that is being incorporated into this bill in clause 89A. This will be a major problem when employees are seeking to negotiate. Let us assume for a moment there is some capacity to negotiate with your employer. The fact remains that the employer has all the cards in his or her hand and the employee does not.

I refer to another provision which I believe will be a fundamental hurdle for ordinary working people in this country in trying to negotiate their conditions. I know there has been some misinformation or at least some ambiguity about the way in which this bill has been read, but when an Australian workplace agreement is introduced—that is, the individual contracts that the government is pushing down workers’ throats; unsuccessfully, I might add, and that is why only four per cent of the entire work force have accepted them in almost 10 years—the employer will be given an exemption from a form of duress because there is a provision in the bill that will expressly allow the employer to require, as a condition of employment, a prospective employee to sign an AWA. That is unarguable; it is expressed in the bill.

What the Prime Minister says is that that does not affect current employees. Firstly, last week in the matter of public importance I made comment on why I think that is not the case. What will happen is that once a person comes into a workplace with fundamentally inferior conditions of employment than his or her colleagues then they are going to be under enormous pressure to change their conditions of employment to that lower benchmark. Indeed, there will be a rippling effect through industry because, then, another company that is competing against the first company will have to consider doing the same—and that is even if they are decent employers. I said during my time as a union official and I have always said in this place that I believe that most employers are honourable and want to do the right thing—they have competing pressures but they want to do the right thing—but this bill, if enacted, will force honourable employers to act dishonourably to ensure their company continues operating effectively and competitively.

Further to that there is another concern I have about the way in which AWAs will be introduced which cannot occur today. An AWA, for example, cannot be imposed upon an existing employee while a certified agreement is in place. Until the nominal expiry date of a certified agreement, they cannot be offered AWAs. Whilst that agreement—it might be three years; it can now be up to five—is covering those employees in that workplace, once that agreement is done, signed, sealed and delivered, stability is supposed to exist in the workplace. You go through the argy-bargy of negotiating—it could be employees with their employer; it could include unions—and, once you reach an agreement, you are supposed to settle the place down and get on with the fundamental core business of that operation. The problem with this bill is that on Monday they could reach agreement on a certified agreement that covers the entire work force in that workplace but then on Tuesday the employer could offer an AWA to any employee in that workplace and that AWA, pursuant to proposed section 100A of this bill, will prevail over the existing enterprise agreement.

It is interesting how discriminatory the government is with respect to the two types of industrial instrument. If a later certified agreement is negotiated, it can only take effect after the nominal expiry date of the current certified agreement. However, proposed section 100A(2) says:

A collective agreement has no effect in relation to an employee while an AWA operates in relation to the employee.

As far as I can see, that provision would mean that an AWA can prevail. The government then says that you cannot force people to sign that actual agreement; you cannot force people to sign the AWA. But, unfortunately, there will be too many instances where employers will attempt to break that collective agreement by ensuring that employees sign that AWA. That is a concern I have, and that is why this bill has to be read in its totality.

Further to that, whilst it is true to say, at least on the face of the bill, that an employee can say, ‘No, I have a current arrangement; I do not wish to enter into an AWA as an existing employee and I want to wait until the nominal expiry date of the collective agreement,’ the problem is that many employees will be frightened because another provision in this bill, in the case of all of those employees in workplaces with fewer than 100 employees, gives no recourse if they are unfairly dismissed.

Never mind that there are some provisions that allow for a claim against an unlawful dismissal, no advice will be provided to an employer to give the reasons why it is unlawful to sack somebody. They will say: ‘If you want to flick somebody, just don’t use those three reasons; use all the other ones. Once you do that, there will be no capacity for people to seek recourse before the commission.’ So, whilst it is true to say that an employee need not sign an AWA whilst they are subject to a certified agreement which has not nominally expired, the fact remains that the right of defending oneself when unfairly sacked will be removed for more than four million workers in this country and, therefore, they will feel that they have no capacity to stand up to their employer and say, ‘I don’t want to do that; I do not want to take an individual agreement ahead of a collective agreement that currently binds you, the employer, and me to a set of conditions of employment.’

When read in its totality, this bill is about frightening Australian working people into making decisions they wish they did not have to make. We know that the employers know that and we know that the government knows that. I am aware of some employers who do not support that approach, but I emphasise again that, once a critical mass of employers go down that route and start using the pernicious provisions of this bill, it is going to force honourable employers to do the same. It is for that reason and many others that I and, indeed, the Labor Party cannot support this bill.

I refer to some of the apparent reasons for which the government have introduced this bill. They have run economic arguments to advance their cause, but many economic commentators have refuted the assertions made by the government about the economic boom that will result from the introduction of this bill. Economics editor of the Age, Tim Colebatch, who is neither an enemy nor necessarily a friend of Labor, or indeed of the government, made it very clear in his own analysis in today’s edition when he said:

Since 1990, the OECD estimates, productivity has grown only half as much in New Zealand as here.

Why did he conclude that? His comparison is that, with some minor exceptions, the government’s efforts to bring about decollectivisation or the removal of the right to collectively bargain in the workplace are similar to the draconian laws that were introduced in New Zealand. He says effectively there has been no relative productivity gain in New Zealand when compared to the Australian economy.

Under Hawke and Keating we had a productive, collaborative approach to industrial relations which led to productivity growth—and that productivity growth has continued, although there has been some slump—but our sister country, a country close to us, chose a different path, the lower road, which led to far worse productivity gains than we have had here. So there is no economic argument for turning on our work force, our Australian working families—the greatest asset this country has in economic terms—and removing their current conditions of employment, their entitlements and therefore the way they live their lives. There is no argument that, by doing that, we will be a more prosperous country. We will not be a more prosperous country. We will be a divided country.