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Tuesday, 8 November 2005
Page: 96


Mrs GASH (8:44 PM) —I rise to speak in support of the Workplace Relations Amendment (Work Choices) Bill 2005. It was the Hon. Justice Michael Kirby who, in an address to the Industrial Relations Society in Victoria, late in 1996, said:

I think it is fair to say that, over the course of the century, the High Court has, by almost imperceptible steps, taken in a multitude of decisions, gradually enlarged the power of the federal Parliament to enact laws with respect to conciliation and arbitration of industrial disputes. The recognition that other heads of federal power, notably the corporations power, could be used to sustain laws on industrial relations, clearly circumvented many of the problems that had bedevilled governments, and industrial relations in Australia, during the first half of the century.

Justice Kirby was acknowledging that, like everything else in this world, nothing stands still but continually evolves. This legislation is a part of that evolutionary process as much as the record of ‘wins’ by the ACTU of ever increasing employment conditions. I went to the ACTU web site where even they proudly claim ‘a new era of industrial relations’. They said:

The election of a Federal Labor Government in 1983 ushered in a new phase in industrial relations.

The web site goes on to list the achievements of the ACTU where amongst the milestones are the words ‘the right to be given notice and to be consulted about changes at work such as new technology, planned retrenchments, new working arrangements’. This effectively signals a new phase of domination in the workplace by groups who do not have to invest one brass razoo in a capital venture.

I well remember several years ago reading about an industrial dispute at Sussex Street, where a couple of workers were retrenched by the Labor Party. When the shoe was on the other foot, there was deafening silence from the unionists—no grandiose rhetoric about fairness and the right to work or whether the dismissal was unfair. No, the hard men of the Labor Party, pragmatic as ever, put the lid on the matter and moved on without a care in the world for the workers who were claiming they were unfairly dismissed. Even in one of their union-held forums I recently attended in Kiama, there was a former ALP worker speaking about how unfairly he was treated by his own union—to be very quickly silenced by the union leader, Bill Shorten. Seldom will the union movement have to make such a decision, but when they did they were found wanting.

Mind you, I need to give credit where credit is due. Many of the concessions extricated from employers by the standard of the day were fair and reasonable. But that does not mean that they must be set in concrete until the end of time. Many concessions were clearly very generous, some won at a time when the bargaining power of the employer was clearly stacked against them. Whilst certainly not unique, Australia’s experience was one where over time the industrial laws aggregated to favour the employee and their organisations. One could argue that the domination of the union movement over the last three decades has brought about some of the changes we see in this bill. If we are to encourage further job growth, create more taxpayers and discourage dependency on our social security system, we need to re-appraise those elements that have been holding us back.

I have been on both sides of the fence, both as employee and employer, so I can claim to have a balanced view. Many in the trade union movement have not been in that position yet persist in arguing that they should dictate terms to the industrial relations landscape in Australia. You need only look at the Labor Party benches in parliament to see the monopoly of union workers and members, whereas we on the government side have a wide range of business experience.

Australia’s industrial relations system has been a strange mix of free market economics embedded with a regulated labour market and, depending on which side of the fence you are standing on, has been described as ‘successful’. But it is only successful when the economy can afford to absorb some of the counterproductive aspects of these arrangements. There is little flexibility in the current arrangements because they are based on precepts built upon from the time of Federation. Now it is necessary to adjust to the reality of contemporary society.

I acknowledge the expressions of concern that are out in the electorate but in a way they are reminiscent of the events surrounding the introduction of the GST, which you would well remember, Madam Deputy Speaker Bishop, being in Gilmore at that time. So you do not have to go too far back to see the ‘chicken little’ strategy of the Labor Party unfolding. ‘“We’ll all be rooned,” said Hanrahan’, to paraphrase a famous poem. But, as events turned out, we were not, and the ‘roll-back’ commitment soon went out the window like a puff of smoke. But I hear that the Leader of the Opposition has again said that if he wins the next election he will roll back these reforms.

The emphasis of the argument against this bill has focused on the concept of ‘fairness’ but surely that depends on where you are standing. Is it fair to expect that, with economic fluctuations, wages and conditions should not move and should remain fixed in the face of falling profits? If a component of business is not performing effectively, should it not be replaced? There are many businesses out there doing it tough right now, none more so than what is described as a microbusiness, one that is a family-run business with a handful of employees. With profits falling, they still have to meet their obligations, with wage costs being the biggest component. Little wonder that industry has progressively increased the amount of casuals it employs, simply to retain some degree of flexibility in a volatile environment. Yet the unions and the Labor Party continually bemoan the casualisation of industry. They cannot see that it is primarily their efforts that have contributed to this outcome.

And what of the employee? Surely they also deserve to have enough confidence in the future as a casual to invest in a mortgage. This bill has attended to that by providing a safety net of uniform standards, protected by legislation, guaranteeing a number of basic conditions, called the fair pay and conditions standards. So, whilst the inflexibility of the award system has been removed, there are still provisions in place to protect the worker.

It has been said that there is no redress for unfair dismissal, yet that is not entirely true. Since the inception of unfair dismissal legislation, the test of what constituted unfairness has been subjective, dependent very much on the opinion of who was hearing the case rather than being guided by legal principles. So, whilst the intention may have been good, the actual practice soon became discriminatory in favour of the person bringing the complaint, in a lot of cases much to the costly detriment of the employer. Instead, this bill has provision for unlawful dismissal—specific provisions spelt out so that it is not open to bias based on opinion.

In a way, it is a response to the very policies of the labour movement that is being reflected in this legislation. The inflexibility of conditions has forced employers into casualisation at the expense of membership of the union movement. It is no surprise that, over time, union membership has plummeted, to the degree that small business owners now outnumber trade unionists.

With Australia competing in the global market more so now than ever before, how relevant is it to retain provisions more suited for a time long gone? We need to be ready to meet the economic contingencies thrown up by a volatile world and, with the present industrial laws, we are not well placed. There has to be a greater degree of flexibility, purpose-built to suit specific industries. That might mean that the conditions of employment might vary from one workplace to another, even though they may appear similar in practice. After all, the health of a business predicates employment potential, and no-one can disagree with that.

Already there is ‘black money’ out there, where people enter into an arrangement to do work without entering into an employment contract. That is a high-risk proposition in the face of a myriad of employment laws that businesses have to contend with, but people are prepared to take the risk. They weigh that up against the fact that they cannot enter a formal employment contract because of the high cost involved relative to the profit of their business. So it is manifestly unfair to impose conditions whereby people have to take these risks: the employer, with the possibility of being discovered bypassing their legal obligations; and the employee, deciding that cash money suits their purposes better, because at least they have some income and will not pay tax.

In my role, I am aware of episodes where employers have been threatened by unionists—industrial blackmail and standover tactics made possible by the dominance of the trade union power under present laws. I myself have been threatened, and this is just not on. Some sanity has to be brought back to the Australian industrial relations system, including the many different awards that exist, especially in the hospitality and retail industries, the backbone of small business.

This bill seeks to standardise provisions where at present there are overarching agencies whose role and power are lost on most people in the street. They are also lost on many employers, who are not lawyers but largely simple people with simple notions as to how things ought to work. Yet here they are, every day at risk of prosecution for failure to comply with something that takes a court of law to decipher. Where is the justice in that?

The thrust of this bill is long overdue. I am confident that, in time, the fears being enunciated by the other side will be allayed. I concede that there may be cases of unscrupulous employees, as there are unscrupulous employers. But, to those in fear for their jobs because of what they have heard, I can only echo the statement by one representative of a peak employers federation, who observed that no employer wants to get rid of a good employee, and no employee wants to work with a bad employee and carry a disproportionate share of the workload. Who does? I commend this bill to the House.