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Monday, 27 February 2012
Page: 1783


Mr BANDT (Melbourne) (15:33): This bill introduces a set of amendments to the Fair Work Act addressing a number of problems that have arisen, being the subject of much public discussion over recent months. These amendments will make it more likely that disputes will be resolved and will require Fair Work Australia to give greater attention to the core issues of workloads, job security and work-life balance. The bill will also remove the incentives we have seen all too apparently that exist for powerful employers to use legal tactics as a way of avoiding good faith and bona fide negotiation in the resolution of disputes by negotiation.

Members will recall that in October last year Qantas clearly demonstrated the power imbalance that still exists between everyday working Australians on the one hand and large corporations on the other. Qantas decided to take extreme action and ground the airline. No prior notice was given and under the current rules no prior notice was needed. A large corporation flexed its muscles, caused widespread disruption and got exactly what it wanted. Effectively Qantas held a gun to its own head, blamed the unions and then waited for Fair Work Australia to intervene and terminate all industrial action. That might have been legal but it was not right. Unfortunately, the actions of Qantas may have inspired other companies to use similar tactics. In December the shipping company POAGS locked out their workforce in Freemantle and Bunbury. As my colleague Scott Ludlam said, the workers had been targeted after using work bans to protest about safety concerns and POAGS dragging out the agreement negotiations for 12 months.

A number of these amendments are aimed at addressing the situation where powerful employers escalate industrial disputes in an aim to get some perceived tactical advantage. As a first measure, the bill will require companies to give three days notice prior to a lockout or any change in normal operations in preparation of a lockout. This is not onerous. It simply imposes the same time limit on companies that already applies to workers.

Secondly, and critically, the bill will also require Fair Work Australia to consider whether employer response action is proportionate in the circumstances or whether the action has been taken to make an application more likely to succeed. If either of these applies, then Fair Work Australia can only suspend industrial action rather than terminate. This would ensure that companies cannot bypass the bargaining process through a Qantas style approach. It would minimise the likelihood of such tactics repeating and put the pressure back on parties to come to an agreement.

Thirdly, Fair Work Australia would also be given better tools to deal with serious industrial action. At present, Fair Work Australia can only suspend or terminate either everything or nothing at all. This is the approach that Fair Work Australia has determined is the only option open to it under current law, and I refer to the decision of National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014, especially at paragraph 11. The amendment that is contained in this bill would redress that situation. It would make it clear that Fair Work Australia can terminate that part of ongoing industrial action that poses the relevant threat under the section. It can also suspend that part. It can allow the part that poses no threat to continue. As such, Fair Work Australia will be able to ensure a tailored response while making sure that the public interest continues to be protected.

One of the issues that was at stake during the Qantas dispute was the job security of employees. Given that about 60 per cent of employees in the modern workforce are engaged in insecure work, it is hardly surprising that employees are concerned about the security of their employment. The less job security people have, the less choice they have. We should be able to choose whether to have a mortgage or to rent, but so often for so many everyday Australians that choice is forced on them by the unreliable nature of their employment. This bill will make it explicit that job security is a permitted matter for the purposes of enterprise agreements. It will also make it clear that workloads will be a permitted matter for enterprise agreements. These matters will also become objects of the Fair Work Act and factors that Fair Work Australia takes into account when making any workplace determination.

Unfortunately, it seems that rights at work are under attack not just from large corporations such as Qantas, POAGS or Schweppes. In Victoria we have witnessed the ongoing saga of the nurses dispute, where the critically important issue of nurse to patient ratios is unresolved. The nurses and employers are bargaining under a federal system because there is no state system anymore. The dispute remains unresolved because the Victorian government has deliberately refused to bargain because it believes it will get a better outcome before a legally hamstrung Fair Work Australia. As a result, the dispute has been strung out over 106 days, to the point where many nurses are now considering resigning because they do not know what else to do and there is nowhere they can turn to get the whole of their dispute resolved.

Items 11 and 14 of this bill address a very significant problem with the operation of the act. At the moment, bargaining representatives may be bargaining about legitimate matters, yet not all of those matters may be capable of being resolved by way of an industrial action related workplace determination. As a result, it may be in the interests of one of the parties to have disputes resolved by way of workplace determination instead of negotiation. This can lead to a prolonging of disputes and can encourage parties to take tactical steps in anticipation of achieving a workplace determination. It also works against the objects of the act, which prioritise dispute resolution through enterprise bargaining.

One example is bargaining in state governments or state public sector agencies where the bargaining representative of the employees is pursuing what would ordinarily be understood to be a permitted matter in an enterprise agreement, such as a claim about the number or identity of staff to be employed, yet the employer asserts that such a matter cannot be included in a workplace determination because of constitutional limitations. In such an instance, the employer may prefer the matter to be resolved by workplace determination and may take steps it considers make it more likely to achieve that outcome. Other examples may arise in the future should the jurisprudence ever evolve such that certain subject matters, although otherwise permitted matters for enterprise agreements, will never, as a question of principle, be included in workplace determinations. In such instances, whichever party considers it would benefit from such a limitation may take steps to achieve a workplace determination instead of reaching a full resolution of outstanding matters by agreement with the other party.

The new sections 423(6A) and 424(1A) would encourage parties to resolve all the matters in dispute between them. It would require Fair Work Australia to be satisfied that, to the extent any matters in dispute could not be resolved by way of workplace determination, there must be an agreed and binding method of resolving these outstanding matters. The object of these new sections is to ensure that all legitimate matters in dispute between the parties are resolved fully and finally with a priority given to resolution by agreement provided that industrial action may be suspended if Fair Work Australia considers it appropriate to do so. This sections are of general application and will apply to all applications for termination of industrial action. To the extent that they apply to state governments or state agencies to whom certain constitutional limitations apply, these provisions will help resolve disputes fully and finally, something that is additionally important in those instances where there may be no other mechanism of finally and fully resolving those disputes under a relevant state law. I refer here to Re Australian Education Union and Australian Nursing Federation; Ex parte Victoria (1995) HCA 71 paragraphs 80 to 81. Fair Work Australia retains its powers to suspend but not terminate industrial action. Further, if the only reason that matters in dispute cannot be finally and fully resolved is one bargaining representative's failure to consent to an acceptable process of resolution, then that party's industrial action can be suspended. In other words, one cannot rely on one's own refusal to consent to an acceptable process of full and final dispute resolution as an excuse to continue industrial action that Fair Work Australia would otherwise consider ought not take place. I greatly respect the work that nurses do and this bill respects the work that nurses do. I urge the parliament to respect the work that nurses do and pass the bill.

The bill will also insert a provision that requires enterprise agreements to have a dispute resolution provision that allows Fair Work Australia to arbitrate where all other measures have failed. I note this approach was endorsed by Labor at its national conference last year. It is a sensible approach and I hope that leads them to support this bill. Lastly, the objects of the act will be amended to ensure that better work-life balance is taken into account by Fair Work Australia, that the question of workloads is taken into account and that we also end the anomalous situation where the Reserve Bank is required to take into account the promotion of full employment in Australia but Fair Work Australia is not. I commend the bill to the House.

Bill read a first time.

The DEPUTY SPEAKER ( Hon. BC Scott ): In accordance with standing order 41, the second reading will be made an order of the day for the next sitting.