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Wednesday, 30 May 2007
Page: 10


Ms GILLARD (9:43 AM) —In the immortal words of Yogi Berra, it is like deja vu all over again. Here we are, again, debating another piece of industrial relations legislation that the government is rushing through this place, drafted at the last minute and debated at short notice. Here we are, again, seeing the government adding to the mound of legislation representing its supposedly simpler industrial relations system, adding to the complexity, confusion and chaos created by this government for Australian employers and employees. Here we are, again, with another example of this government arrogantly thinking it can mislead Australian working families by suggesting it has a quick fix to the overwhelming unfairness in its Work Choices laws. Here we are, again, with another round of multimillion dollar taxpayer funded political advertising and, of course, you guessed it: it is all happening in the run-up to an election.

The only thing of course that we do not ever see from this government—and we will never see—is a real belief in fairness at work. This is a government operating with a simple, arrogant approach to governing this country: pollsters first, advertising second, policy third. That has been the genesis of this bill, the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007. That is what this bill is all about, and that is undeniable on the facts as we know them—pollsters first, advertising second, policy third. The bill is not about the government listening to the Australian people; it is about the government listening to its pollsters. The bill is not about tough decisions, conviction and the national interest; it is about politics first, second and third. The bill is not about the government providing fair compensation to employees; it is about the government hiding the unfairness of its legislation until after the next election.

The government claims that this bill is about fairness. I want to clearly explain the government’s political strategy on this bill and the opposition’s policy response. In this term of office, since the 2004 election, the Prime Minister has changed. The Prime Minister secured control of the Senate. The arrogance that came with that power caused him to betray the Aussie battlers he had always claimed to represent. The Prime Minister faced a choice after he got control of the Senate: a choice between meeting the need for fairness for Aussie battlers in the workplace or making the law of Australia conform to his extreme views on industrial relations. He chose the latter. He deserted the battlers; he embraced the extreme. Having seen the Prime Minister desert hardworking Australians, Aussie battlers have repaid the insult. They have deserted the Prime Minister. The government’s opinion polling—ironically, all paid for by the taxes of hardworking Australians—would have screamed that battlers did not want the Prime Minister’s extreme Work Choices laws.

Today we have seen government ministers at odds on what is the cover story for these extreme Work Choices laws. They cannot even get their lines right. In the debate about the guillotine of this legislation, the former Minister for Employment and Workplace Relations—now the Minister for Immigration and Citizenship—stood at the dispatch box and suggested that this bill was about correcting unintended consequences of the original Work Choices legislation. The government did intend these consequences and it is nonsense to suggest otherwise. Indeed, today the current Minister for Employment and Workplace Relations, in responding to data on the time that Australians now spend at work, said, ‘That is a furphy, because the only time you could ever trade away penalty rates without compensation has been in the last 13 months.’ That is too right. The only time in this country when workers have been able to trade away penalty rates without compensation was as a result of the government’s extreme Work Choices legislation. That was not an unintended consequence. That was at the core of what was intended.

Indeed, the government’s advertising at the time made it explicit that this was possible. There was an example of Billy, who got a minimum wage job, no penalty rates and nothing else, and the government stood inside and outside this place and justified that example. At the core of what they wanted to achieve were laws which enabled basic conditions such as penalty rates, overtime, shift loadings, meal breaks et cetera to be stripped away from workers. That has happened in the last 13 months. We now have that verified from the mouth of the Minister for Employment and Workplace Relations. His words were: ‘The only time you could ever trade away penalty rates without compensation has been in the last 13 months.’ That is what the government wanted and it is what the government still want. The only thing that has changed is that government pollsters have told them loud and clear that it is not what the Australian community wants, and that it is important for the government to pretend, in the period between now and the election, that they will not let that happen. It is important to put up that pretence, it is important to stop saying ‘Work Choices’ and it is important to put government advertising on TV.

But no Australian should make a mistake about this. This is what the government wanted, it is what they designed the laws for, it is what they still want and it is what will be back with full force—probably even more force—if the government is re-elected. The Prime Minister is responding to the politics of this, not with real substance, but with spin. We know that he no longer says the words ‘Work Choices’. Indeed, we have had humorous incidents in question time, where he stood at the dispatch box minute after minute, mumbling and bumbling in a desperate attempt not to say ‘Work Choices’, as the opposition chided him: ‘Say the name, say the name.’ He just will not say ‘Work Choices’.

The Prime Minister no longer says ‘Work Choices’ because he knows that that is the hated name of his hated laws. He is using taxpayers’ funds to try to fix his political problem through advertising and he brings this bill to the House. The Prime Minister is of course desperate for a political fix. To get a political fix, he needs to pretend to fix the extreme and unfair nature of his Work Choices laws. I say ‘pretend’ because he does not want to fix the substance. Work Choices is his creation, it is his political labour of love and he wants it to continue as it is. This bill is his way of pretending to fix Work Choices without really fixing it. It is a way of getting to say the word ‘fairness’ without bringing real fairness.

For a bill that is supposed to be about fairness, it is interesting that the government could only bring themselves to mention the word ‘fair’ five times in 76 pages of new law. We see the word ‘fair’ only five times in 76 pages of new law. We all know that the Prime Minister is a clever politician, but the fact that this is a quick political fix, not a real fix, is made abundantly clear by just stopping for a moment and asking yourself one question: does any Australian really believe this bill would have been brought into this parliament if it were not an election year? We should stop and contemplate that for a moment. Even government members could not manage, surely, to come into this House during this debate and claim the contrary. It would just be so absurd. It would render them open to so much ridicule if they came into this place and tried to pretend that the only reason that this bill is here is not that it is an election year. Every Australian would say yes to that proposition. The only reason this bill is in this parliament is that it is an election year. Australians will judge the Prime Minister’s motives. The task for Labor is to judge the bill.

Any analysis of the bill shows that the so-called fairness test within it is fake. It will not bring Australians the fairness that they have lost because of the extreme nature of Work Choices; the only way to do that is the Labor way. It is getting rid of Work Choices, it is repealing the Work Choices laws and it is ending Australian workplace agreements. That is the only way of fixing the unfairness at the heart of Work Choices. The Labor way is getting rid of the Work Choices laws in their entirety—lock, stock and barrel—and making sure that they are replaced with laws that have fairness at the heart of them for Australian families. The approach Labor have taken to this bill is that it does no harm and that if this bill might make a difference to one worker then we should support it. Theoretically if a low-paid worker is offered an Australian workplace agreement this afternoon and that Australian workplace agreement takes away all 11 of their protected award conditions—like overtime and penalty rates—for no monetary or non-monetary compensation at all then this bill might, and I deliberately say ‘might’, stop that AWA. The reason I say ‘might’ is that the process of judging that Australian workplace agreement is secret and non-reviewable.

We have seen some extreme cases. There was the case of the Darrell Lea Australian workplace agreement, which stripped conditions like penalty rates for not one cent increase per hour for the hours worked by those employees. In those circumstances, where not one cent is offered for the loss of conditions, it is possible that this bill might stop that AWA. Because there is that chance in that one case that the bill might make a difference, on that basis Labor is prepared to support it. Then of course we can get back to the real debate. The real debate is about getting rid of Work Choices entirely, because you cannot bring fairness back into Australian workplaces without getting rid of Work Choices—all of it—and the Australian workplace agreements that come with it.

Let us think about all the other cases of Australian workplace agreements and what this bill would do, or in truth fail to do, for all those other circumstances. In all of those broad cases, apart from that narrow case I have put, this bill has to be judged a failure. Firstly, the hundreds of thousands of workers who have already signed unfair Australian workplace agreements and have received no compensation for losing conditions get nothing from this bill at all. The Prime Minister has acknowledged that. The bill will not produce any fair outcome for Australian workers who lose other important award conditions like rostering protections, redundancy or long service leave entitlements. Under the government’s test, these employees are not entitled to these award conditions or any compensation in lieu of them at all. In fact, if they are offered these basic entitlements, which used to form part of the safety net for workers in this country, this can be considered fair compensation for the loss of other award conditions like penalty rates and overtime.

Let us think about that for a moment. You might be a worker who has historically enjoyed access to redundancy pay. You are worried that if you are made redundant then there would be a transition time. You still have to pay the mortgage and the bills and feed the kids. You would have an entitlement to redundancy pay—probably not very much but an entitlement to redundancy pay—under the industrial norms of this country. Under this bill, giving you that basic entitlement could be weighed as fair compensation for losing your penalty rates—for losing one of the protected award conditions. That is not a protected award condition. Penalty rates are supposedly a protected award condition—though we know of course the words ‘protected by law’ have meant nothing in industrial relations. So your employer could say to you: ‘That basic thing that used to be in the safety net, I’m going to give you that. But in exchange for that, I’m taking away your penalty rates.’ That sort of balance is perfectly possible under this legislation.

Let us think about the importance of those award entitlements that can still be stripped away without compensation. I asked the Prime Minister the other day to think of a mother working in a retail shop in Melbourne under the Victorian shops award. Under the award this working mother would receive, in normal circumstances, at least 14 days notice of a change in her roster. This protection means that this mother has the time, and the certainty, to arrange child care where her shifts change. If there is an emergency, the notice period is 48 hours. That is still presumably—though with great difficulty—enough time to arrange something for the care of the kids. However, if this hardworking mother was today offered an AWA, under this bill that standard award protection could be ripped away from her without any compensation.

This bill does nothing to protect that woman. She could be stripped of her right to 14 days notice of a change of roster, or 48 hours notice in an emergency, and literally be told that her rosters can change with five minutes notice. It does not matter about the childcare arrangements; she could lose her entitlement to that notice and receive nothing for it at all—she will just have it stripped away. If she were to be provided with this notice period, it might be considered fair compensation for the loss of other protected award conditions, particularly as under this bill there is a special weighing of the employee’s personal circumstances. The bill might not be fair to employees generally, but there are other unfairnesses that I want to speak about besides the stripping away of award conditions like notice of roster changes and redundancy.

This bill contains a section that ought to make people worry very grievously about what the bill might mean. It contains a section which enables the personal circumstances of an employee to be weighed in the determination of whether or not the industrial conditions offered to them are fair. This is the first time in this nation’s history that your personal circumstances determine your worth. Does this mean that it will be fair for an employee with children who prefers to work Saturday because their partner is home to not be paid penalty rates but to work side by side with workers who are? And who assesses the impact of these personal circumstances? From the legislation it is solely the Workplace Authority that receives these details, and it receives them from the employer. Do Australians really want details of their personal circumstances—their family arrangements, their childcare arrangements, whether they are married, whether their partner is working, whether they are a single mum; all of these personal issues like whether Gran routinely provides care for the kids, whether she cannot, whether she is sick and whether that means she cannot provide care any longer—to be forwarded by their employer to a bureaucracy in Canberra and weighed by bureaucrats who do not even have to talk to the employee about the basics of their lives?

As we consider more and more examples like this and more and more of the factors that go into this test, the more the process becomes engulfed in darkness and secrecy. This bill sets up a secretive, unwieldy and unreviewable process for this new Workplace Authority to unilaterally determine whether or not an agreement is fair. The authority are not required to give reasons about how they assessed the monetary value of something provided to an employee. They do not have to give reasons about how they assessed the non-monetary value of something provided to an employee. They do not have to give reasons for what they think about an employee’s work situation or personal circumstances, or how these considerations are relevant. The Workplace Authority are not even required to give reasons about how they reached their decision—about why they think an agreement should be judged fair or unfair. There is no requirement that an employee or employer be given the opportunity to give their view, or to give an opposing view, about the value of entitlements or the overall fairness of their workplace agreement.

The process allows an employer to give a unilateral undertaking to make an agreement fair, without giving the employee a chance to agree or not to agree to the terms. There is no time limit for the Workplace Authority to tell employers and employees whether the test is going to be applied, what the designated award might be and whether their agreement even passes the test. That could all just float along. There is no right of appeal for any of these things unless Australian employers and employees want to go to the High Court. How laughable is that? An employee has their employer submit their circumstances, it goes into a bureaucracy in Canberra and it emerges at the other end having weighed things like your personal circumstances without having to have contacted you to discuss what you think are your personal circumstances. It is a new definition of the term ‘personal’ if they can know everything about you but you do not even get to describe it for yourself. It goes into this bureaucracy in Canberra, it emerges at some undefined time later at the other end of the bureaucracy and, if you want to dispute the decision, the only way you can do it is to go to the High Court. Films like The Castle aside, how many Australians are going to be able to take their case to the High Court? Of course no-one is. No-one is going to spend hundreds of thousands of dollars and years reviewing a decision about penalty rates. Of course they will not. In effect you have no rights of review when this secret agency weighs your employment agreement and in the process weighs things about you, your personal life and your personal circumstances. This bill creates a system where employers and employees can be left in a dark wilderness for weeks or months without knowing whether their agreements, which will already be in operation, are lawful. And the bureaucracy that comes with this arrangement is unbelievable. According to the explanatory memorandum, the government has been forced to spend an additional $370.3 million for the implementation of the so-called fairness test.

We did not have the budget that long ago. Of course, this expenditure was not in the budget—$370.3 million of new money. The additional funding is split across the Workplace Authority, formerly known as the Office of the Employment Advocate; the Workplace Ombudsman, formerly known as the Office of Workplace Services; and the Department of Employment and Workplace Relations. The only thing that has not changed its name is the department. We now have the legislation formerly known as Work Choices; the Office of the Employment Advocate having changed its name to the Workplace Authority; and the Workplace Ombudsman, which was formerly known as the Office of Workplace Services. The Workplace Authority gets an additional $303.5 million and the other agency gets $64.1 million, whilst the department gets an additional $2.7 million.

We learned during the estimates hearings of Monday, 28 May 2007, from the current head of the former Office of the Employment Advocate, Mr Peter McIlwain, that hundreds of contractors would be needed to implement the fairness test. New staff would be required to complete training for a month as part of their appointment to assessing agreements against this so-called new test. There is little wonder that this is the case. Mr McIlwain also advised that there are in excess of 21,345 agreements which have been lodged since the date of commencement of these new arrangements and which now have to be looked at.

This funding of $370 million, coupled with the hiring of hundreds of new staff, represents a massive increase in government and in particular a massive increase in the bureaucracy administering our industrial relations system. It increases the size of the Office of the Employment Advocate, now the Workplace Authority, and the former Office of Workplace Services. It increases expenditure across the forward estimates. Mr Deputy Speaker, you will find these figures staggering but, as a total across the forward estimates, the additional funding brings spending on industrial relations to $1.836 billion—$1.8 billion from $1.4 billion; an enormous amount of spending.

Indeed, while this government has talked the talk of small government, it continues to set new standards of big government with its actions and spending. These additional resources are two-thirds the size of the financial implications of the original Work Choices bill. The advertising bill for six days is 10 per cent of the total amount originally budgeted for Work Choices. And the number of new staff will almost double the number of existing staff in the two offices, that of the Employment Advocate and the former Office of Workplace Services, from approximately 536 people to 1,102 people.

Prior to this layer of additional bureaucracy, the firm Harmers Workplace Lawyers released an analysis which estimated the compliance costs associated with the record-keeping requirements of Work Choices. They estimated that the cost to small and medium enterprises was more than $950 million in employee time alone. The compliance costs suggested by Harmers relate only to record-keeping and do not include a range of other costs, such as seeking expert advice from lawyers or workplace consultants, time taken to create AWAs, increased reliance on the court system rather than tribunals for dispute resolution, and the like. This is a new bureaucracy on the shoulders of Australian business.

This bill now deals with two other matters which have been the subject of late amendments which I referred to in the debate about the guillotine earlier today. One deals with enterprise bargaining fees, one deals with a compliance—


Mr McArthur interjecting


Ms GILLARD —I thank the member for Corangamite for his assistance but I do not need it. One deals with enterprise bargaining and one deals with a technical registration problem for federal unions, which has particularly impacted upon those who represent our police. The Labor Party will support both of those amendments and we certainly will vote for the bill overall with those two amendments in there, but I do restate the shambles that this legislative process has been, that those amendments were not in the original bill presented to the House on Monday.

I will conclude by saying: Work Choices has to go. Even as amended by this bill, it is still a gross unfairness for Australian families. The passage of this bill does no harm and, given that the passage of this bill might assist even one worker, Labor will not stand in the way of that worker getting that assistance. We actually care about employees in this country. We care about them every day, not just in the days leading up to an election. That is the difference between this side of politics and the other side. Labor believes in fairness at work each and every day; we believe in that fairness being protected—


Mr Lloyd —So do we.


Ms GILLARD —and that will be at the centre of the system of industrial relations that Labor seeks to bring to this country.

I will now move a second reading amendment standing in my name. And may I conclude by saying—


Mr Lloyd interjecting


Ms GILLARD —and I think the minister at the table, Mr Lloyd, will be interested in this—that later today I will move four in-detail amendments, all about fairness, and if he cares about fairness he can vote for them. With those words I move:

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

“whilst not declining to give the bill a second reading, the House condemns the Government’s lack of honesty about:

(1)   its plans for extreme industrial relations laws before the last election;

(2)   the impact of its inherently unfair Work Choices laws including the way these laws have:

(a)   caused the pay and conditions of individuals on Australian Workplace Agreements to be cut;

(b)   allowed good workers to be dismissed for no reason at all;

(c)   placed an unprecedented paperwork burden on small businesses; and

(d)   destroyed the independent industrial umpire;

(3)   the cost of the taxpayer polling research which apparently led the Government to dropping the term ‘Work Choices’ and bringing this Bill to the House;

(4)   the magnitude of the taxpayer funded advertising campaign to promote the Government’s political spin on industrial relations;

(5)   the fact that this Bill leaves Australians still overwhelmingly exposed to the harshness of Work Choices; and

(6)   its intention to legislate even harsher laws if re-elected”.


The DEPUTY SPEAKER (Hon. BC Scott)—Is the amendment seconded?


Mr Ripoll —I second the amendment and reserve my right to speak.