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Wednesday, 31 October 2012
Page: 12791


Mr BANDT (Melbourne) (13:33): It is with a wry smile that I listen to members of the coalition complain about appointments to Fair Work Australia. During the period of the Howard government, when it was the Industrial Relations Commission—

Mr Briggs interjecting

Mr BANDT: I am sure that the member for Mayo will interject if I have the numbers wrong, but there were something in the order of 20 new appointments made during that time, of which about two came from a union background. So I think those who live in glass houses should not throw stones about this question of appointment. I think there has been a fair bit of traducing from both sides of the tradition that had existed previously in Australian industrial relations of an even balance between employers, employees and people who had come from other backgrounds, including government. I note that the member for Mayo leaves without correcting my figures, and I think they are about right: of the 20-odd new appointments under the Howard government, about 18 came from employer backgrounds.

We are here debating the Fair Work Amendment Bill 2012, a bill to amend the Fair Work Act to give effect to a review that was conducted and some changes that are said to be necessary to the act. There are indeed a number of changes that need to be made to the act, and I will come to those in a moment. But perhaps I could just come back and finish on one point about the question of members of Fair Work Australia. Whatever the merits of the member for Mayo's charge regarding the vice-president positions, which I note the coalition is going to support through the passage of this bill, we can put those to one side—that is a potentially a legitimate claim that is being raised there. But I do take issue with the statements that were made just then by the member for Mayo about the President of Fair Work Australia, Justice Iain Ross. I think it ought to be recalled that Justice Ross's pedigree is one of previously being a Supreme Court judge and the head of VCAT in Victoria. As well as his having worked for the ACTU I know that he also ended up working for a law firm that represents employers more often than not. I know that because, in my previous capacity, I appeared opposite him. I think we should be careful in this place, especially when people outside have the status of a judge of the Federal Court of Australia, of not overstepping the mark and suggesting, as one could interpret the previous member's comments, that somehow the current head of Fair Work Australia would not act appropriately. I think that is a more serious charge than the one that the member sought to level and one that should not be made using privileges that attach to debate that goes on in this chamber. That would be a misuse of those privileges.

With regard to the changes that do need to be made to the Fair Work Act, there are many. One would have hoped that, in a bill that has been brought in quickly and that presumably the government identifies as being the most urgent changes that need to be made—and ones that need to be made before the end of the year—we would have seen changes addressing a number of very important areas. The Fair Work Act needs to be amended to give people better work-life balance. At the moment under the Fair Work Act, you have the right to go and ask your employer, in certain circumstances, for flexible working arrangements to go and look after your kid or certain others in your family, but it is an unenforceable right.

The employer can say no and, if they say no, there is no way that you can appeal it. That matter urgently needs to be amended. The Greens have said this, the ACTU has said this and various other groups concerned about making sure people have a proper work-life balance have said this. Unfortunately, there is nothing in this bill that gives people a better work-life balance and, surely, we should be using this parliament to see reform in this area.

Secondly, in some very concrete ways state public sector workers—and I have had firsthand experience of this in Victoria—face some pretty big difficulties in bargaining under the Fair Work Act. Nurses, for example, saw their dispute prolonged for months and months—and we know this from leaked cabinet documents in Victoria—because the employer's strategy was to string out the negotiations, to force the nurses out of sheer frustration to then start taking industrial action and to use that to get to Fair Work Australia where their claim would be arbitrated. The reason the employer wanted to do that is that it knew that for constitutional, technical and legal reasons one of the key claims of the nurses—namely, nurse-patient ratios—would not find its way into the final decision. In other words, if it could get to Fair Work Australia through this subterfuge, then the government would win on the question of nurse-patient ratios and there would not be any. So the nurses were forced for months and months to bargain in good faith. They met stonewalling from the government, because that was part of their industrial legal tactic.

We saw a repeat of this behaviour in some version with teachers in Victoria, where you have a government that knows how to use the Fair Work Act and how to exploit the holes that exist in it.

When Qantas grounded its entire fleet and essentially held a gun to the nation's head, it did so, again, for technical and legal advancement under the Fair Work Act. Qantas knew that, if it could provoke a storm and provoke industrial action to be terminated, it would get to arbitration. It also knew that if it got to arbitration it would win on the job security clauses that the employees were attempting to negotiate, similar to what we saw with the nurses.

We have seen very powerful employers under the watch of this government work out the holes in the Fair Work Act and how to use them to stop employees legitimately bargaining for things that really matter, such as job security and nurse-patient ratios. That could be fixed. The Greens have got bills in parliament that would fix those loopholes, but we do not see that in this government's bill. Apparently, this matter is not urgent enough that it needs to be fixed by the end of the year. Everyone who is working in the state public sector should continue to suffer under an unfair act that tilts bargaining away from being a level playing field to, very clearly, being in the employer's favour.

Hearing some of the government members speak, you would think that Work Choices was dead and buried. Anyone who works in this area would know that almost all of the provisions relating to bargaining and industrial action that were instituted in Work Choices have been kept in the Fair Work Act. Indeed, one union I spoke to said they did a comparison between the Fair Work Act and Peter Reith's Workplace Relations Act and felt they would have been better under Peter Reith's Workplace Relations Act because it more closely complied with international standards on how one should bargain.

So there is some unfinished business of repealing those last bits of Work Choices that hang over in the Fair Work Act, and that should be considered as urgent. This government should use this parliament to fix that. There are many important reforms to the Fair Work Act that we could get through now that would protect people's rights at work and that would insulate the Australian public from a potential change of government. So many areas of the Fair Work Act need to be tidied up. Unfortunately, what we have here is a rather tepid bill that contains a mixed bag of proposals, but in our view the case for reform of some of those proposals has not been made out. For example, on the question of costs, if you read the review there is, I would suggest, pretty thin evidence that suggests that somehow a lack of stronger costs provisions in the unfair dismissal jurisdiction is causing any real problem. In fact, there is very little evidence.

From my experience, having worked in that jurisdiction, it was always the case that you would advise applicants very carefully about prosecuting or not taking settlement offers in unfair dismissals because they would find themselves potentially at risk of a costs order. The most recent authorities on this point make it very clear that, in fact, if you act unreasonably in unfair dismissals you can get costs ordered against you. So I do not see the need—and it is not made out in the report—for imposing additional disincentives on people to exercise their rights, and that is what this bill will do.

I am also concerned about the potential adverse consequences of—again without any proper evidentiary basis—putting additional obligations on lawyers who practise in the jurisdiction by potentially making them personally liable. The reason for that is not that there is no room for lawyers to improve; of course there is. But when you say to a lawyer, 'You are now personally at risk of costs, unless you do X,' you introduce conflicting interests for that lawyer. Are their obligations to best represent the person whom they are representing? Or—and this is my concern—will they find themselves more often in this area representing someone who might have been unfairly dismissed because they were pregnant or just because the employer did not like them, and is a lawyer now going to turn around and say to them, 'Actually, you really should accept this offer that is on the table because I myself am concerned about being proceeded against for costs'? In other words, is the lawyer going to put their own interests of potentially not being liable for a costs order ahead of their client, and will that affect the advice that is given to people who are pursuing their legitimate rights? It also does not appear from the review that the 60-day time limit and general protections are being abused, either.

There are also some questions that need to be asked regarding superannuation and the changes regarding industrial action. For the purposes of allowing passage through the House the Greens will be supporting the bill, but that is without prejudice to our position in the Senate and our right to move amendments in the Senate, especially in respect of those areas that I have identified.

I would urge the government not to be too middle-of-the road about this but instead make a clear choice about what reforms it wants to see to the Fair Work Act during the life of this parliament. There is an opportunity to insulate against a return to Work Choices, and instead of being timid we should be bold and make those reforms that are very definitely needed.

Debate interrupted.