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Thursday, 6 March 2014
Page: 1934


Mr BRENDAN O'CONNOR (Gorton) (16:20): I just want to resume where I left off before question time on this very important bill, the Fair Work Amendment Bill 2014, and why the opposition has grave reservations about some of the provisions of the bill. I want to go to the full recommendation that was in the expert panel's review commissioned by the previous government and the fact that the current government has asserted that it is relying upon that recommendation to realise the provision that is currently in the bill before the House. But the fact is that the full recommendation is missing, and that is an alarming reflection of this government's approach to workplace relations, and may indeed reveal the genuine intention behind the construction of this provision.

We know that the Liberals are waging a war on penalty rates, from their submission to the Fair Work Commission, and from the comments of everyone, from their backbench to their Treasurer. And let us not forget the fact that they are holding back on their workplace review until after elections in South Australia, in Tasmania and in Western Australia. The government, when in opposition, went to them at the last election, suggesting that they would commence the Productivity Commission review of the Fair Work Act within six months. Those six months end tomorrow, and yet we have not seen anything to do with that review, and we know why. It is because they have concerns that the voters of Tasmania, South Australia and Western Australia would be aghast at what the government are looking to do in this area of public policy.

To return to the provisions of this bill: the opposition does not consider it reasonable for workers to trade away significant amounts of their take-home pay for non-monetary benefits. Low-paid workers in particular would be very vulnerable if the provisions of this bill were enacted by the parliament. Unless the government is going to implement recommendation 9 of the expert panel, as it promised, in its entirety, we must conclude that it is the first step to an open slather on cutting penalty rates and allowances for Australian workers.

I would contend that Australians simply cannot believe a word that this government says on workplace relations. The government's amendment also omits the panel's recommendation 10 that, upon the making of an individual flexibility arrangement, the Fair Work Ombudsman must be notified in writing of the details. The expert panel itself expressed that this would enable the Fair Work Ombudsman to investigate as to whether these arrangements were being abused by a particular employer or employers in a particular industry. Although the Liberal Party did not commit to recommendation 10, it is incidental to the proper workings of recommendation 9, especially if the Liberals get their way in undermining basic conditions like penalty rates.

But it does not stop there. The government has included a requirement for employees to provide their employers with what is misleadingly labelled 'a genuine needs statement'. This statement is intended to capture 'an employee's state of mind at the time the IFA was agreed to'. The government has tried to pass this off as an employee safeguard, but what it really does, if enacted, is provide employers with a deferred defence to any future claim that they contravened the flexibility term in agreeing to an IFA. The employer will already have a statement signed by the employee at the time the IFA was agreed to, declaring that the employee was better off overall.

The Liberals' real intent here is betrayed by their own words. They say that this provides:

… an employer with a defence to an alleged contravention of a flexibility term provided that the employer's belief that it had complied with the requirements … based on the facts and circumstances in existence at the time of making the individual flexibility arrangement, was reasonable.

While I acknowledge that the Fair Work review panel recommended that the act be amended to provide a defence to an alleged contravention of flexibility, the proposed amendment is not in the spirit of the recommendation. Again, it is entirely and unfairly weighted to advantage employers, ensuring that they have a paper defence to any future claims by an employee of agreement contravention.

The amendment goes beyond the scope of the recommendations of the Fair Work review panel, but of course it does not err on the side of employee protection. For example, there is nothing here about making sure that employees are provided with information about what they are trading and the value of what they are losing, especially if the flexibility is proposed by the employer and not requested by the employee.

On the government's proposed amendments to greenfield agreements, the opposition has concerns that the effect of the changes will see employers basically negotiating with themselves and setting terms and conditions themselves—or, rather, sitting on their hands. This is a clear return to the employer-only agreements that were a hallmark of the Liberals' Work Choices.

The government has suggested that the proposed amendments will improve the bargaining process for greenfield agreements by resolving impasses that arise from time to time at the negotiating table. The opposition opposes these amendments because the government's only solution to resolving an impasse is to remove altogether the need to bother to try to agree. The Liberals clearly believe that bargaining is improved by simply removing one party from the negotiating table, and agreement making is improved by removing the need for parties to agree.

If this bill were enacted, it would provide employers with the ability to set terms and conditions that will affect prospective employees without those employees having a real voice. Consider where the government-proposed amendments skew the bargaining process for greenfield agreements to an employer's advantage. Employers can choose to bargain with only one employee organisation which has representation at the workplace, even if another employee organisation represents the majority of employees. After an employer agrees to bargain with an employee organisation, the employer at any time could issue a notice to commence a three-month negotiation period. It is not a fixed process but a bargaining tool just for employers to use when it suits them best. This countdown clock does not stop once it starts. An employer could essentially walk away from the negotiating table and simply wait for those three months to expire.

The idea that good-faith bargaining plays any real role in this process is simply wrong. Good-faith-bargaining orders, if you get one in time, just cease to have effect at the end of the three-month period. At the end of the three months, the employer—and only the employer—could take their document to the Fair Work Commission for assessment and approval. The bill does not require agreement. The only thing required is that the union has an opportunity to sign up, and, if they do not, the legislation presumes that they have agreed.

This is a snapshot of where the proposed amendments unfairly advantage employers at the expense of employee organisations who want to negotiate in good faith. It is time this government understood that enterprise bargaining is a two-way street, not an employer-driven dead-end.

Labor believe in freedom of association. It is our strongly-held belief that employees should be free to join or not join a union if they so wish. If a worker does choose to be part of a union, it is important that unions are able to represent them. But the government's proposed changes undermine that simple principle. It is important, therefore, that right-of-entry provisions are sensible and not weighted too heavily in favour of unions or employers.

Debate interrupted.