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Tuesday, 4 June 2013
Page: 5053


Mr MARLES (Corio) (13:27): I rise with pride to speak in support of the Fair Work Amendment Bill 2013, which is an amendment to the Fair Work Act to put in place changes in four key areas. Mr Deputy Speaker, I briefly want to take you through each of those and then talk a bit about the bill and the act more generally.

The first area in which this bill seeks to amend the Fair Work Act is in relation to providing for better family-friendly arrangements in a number of ways. Firstly, by expanding the group of workers who will be eligible to make requests for flexible working arrangements under the National Employment Standards. That group of workers will be expanded to mature age workers, for example, workers with a disability and employees with the responsibility for the care of children of school age, and the list goes on. This is an important extension of the right to request flexible work under the National Employment Standards.

The other family-friendly arrangements within this amendment bill provide additional protections for pregnant workers through extending the right to transfer to a safe job for employees with less than 12 months service—so, extending the right which exists for others to those who have worked for less than 12 months—as well as ensuring that special maternity leave does not diminish an employee's entitlement to unpaid parental leave.

The bill also seeks to provide expressly that a worker returning from parental leave has the right to request flexible work arrangements, such as part-time work. The right to request part-time work in those circumstances is clearly fundamental to people being able to re-enter the workplace, having taken time off to look after young children, at a pace which suits them. More and more, people are choosing to re-enter the workforce not on the basis of going from no hours a week to a full-time situation but on a gradual process. I am sure that everyone in this House and people listening to this debate will have people in their lives, if not themselves, who have experienced exactly that desire of wanting to graduate their return to work having taken time off to look after a young one. This legislation provides for an express right to request part-time work.

The second, broad area in which the bill seeks to amend the Fair Work Act is in relation to bullying. Bullying is a scourge throughout our community. It is particularly a scourge in the workplace and it is so important that we are doing everything we can to stop this scourge. There are some who estimate that as many as one in three—and more—people will at some point experience bullying within a workplace. Indeed, the Productivity Commission has estimated that the cost of workplace bullying could be as high as $36 billion a year. That is a very large number. It is about the size of the entire Victorian budget. So this is not just a cost to people's lives; it is a direct cost to our economy. That is why, in addition to this legislative package, the government is providing the Fair Work Commission with $21 million over four years to help workers who are bullied at work get help quickly and affordably.

In relation to this bill, a number of recommendations have been taken up, following the report from the House of Representatives Standing Committee on Education and Employment, chaired by the former committee chair the member for Kingston, which looked at the issue of bullying in the workplace. I acknowledge the member for Kingston's role in relation to that inquiry.

The bill essentially provides the ability for a worker who has been affected by bullying in the workplace to apply to the Fair Work Commission to have their complaint dealt with and dealt with as a matter of priority. The definition of 'bullying', which would be contained in the act as a result of this bill, would be the same definition provided for in the House of Representatives' committee report. The bill makes clear that 'bullying' does not include reasonable management practices, including performance management, conducted in a reasonable manner. No-one is suggesting that the ability for managers to manage their workplace, to seek improvement with their workers and to raise justifiable issues with workers about their work performance cannot occur. That can all still occur and, clearly, it is important that it does. It is important that that be seen as entirely separate to bullying, because it is.

Bullying is an issue beyond that, which very much occurs in the workplace and, as I said earlier, comes at an enormous cost. In circumstances where the Fair Work Commission, having heard a complaint in relation to bullying, then determines that bullying has occurred, the Fair Work Commission will be empowered to make the orders that it considers appropriate to deal with that circumstance.

We in the government stand in different shoes, as we have just heard from the previous speaker on this issue, because we see this as an issue which needs to be addressed upfront and very clearly. The coalition, in the way in which they are approaching this issue, seek to put additional steps in the way which make it harder for people to raise a bullying complaint. The more steps that you put in the way, the less likely you are to have people come forth with the very legitimate issues that they may have. The coalition, as you have just heard, are proposing variations to this legislation which would provide that a worker, before taking a matter to the Fair Work Commission, would first have to seek preliminary help, advice or assistance from an independent regulator. That is an obstacle that, for many people who have suffered the indignity of bullying in the workplace, who want to bring forward that matter, who have summoned up the courage to take the step to deal with it, will simply not jump. That is why it is very important that the bill before the House goes through in the way that is being proposed.

The third area in which we are seeking to amend the Fair Work Act relates to right of entry, and there are some very sensible provisions within this bill to clarify the roles of both parties in relation to right of entry as well as the role of the Fair Work Commission. Importantly the bill provides the power to the Fair Work Commission to deal with disputes about the frequency, for example, of right-of-entry visits and their impact on employers and, indeed, other occupiers of that place of work. The bill provides that where there are disputes as to where meetings will take place within a workplace as a result of a right of entry being used, the default answer to that dispute is that meetings can occur in the place where the relevant workers would spend their mealtimes or other breaks—which, again, is the normal, natural place where you would expect meetings of that kind to occur. These are sensible provisions which deal with the question of right of entry in the workplace.

The fourth area in which the bill seeks to amend the Fair Work Act concerns penalty rates. Penalty rates are a feature of our industrial relations system, and other systems around the world, which has been built up over a century or more to recognise that working outside the zone of nine to five carries with it a personal cost—a personal cost in terms of spending time with family, a personal cost of participating in one's community. So much of our society is organised around the principle that people are at work, by and large, between the hours of nine to five and that other activities, such as those that occur on a weekend, are designed for the weekend. So if you are working at that time it comes at a cost to you, and a penalty rate should be applied. Penalty rates are important from that point of view, but for many workers they have come to represent a significant part of their remuneration. People are relying on their penalty rates for the additional money they bring in. Penalty rates really go to the heart of the work-family balance which we try to achieve in our society. What this bill will do is amend the modern awards objective within the act so that an additional factor that will be taken into account by the Fair Work Commission when making awards will include:

… the need to provide additional remuneration for employees working overtime; unsocial, irregular or unpredictable hours; working on weekends or public holidays; or working shifts …

That as an additional factor in the modern awards objective gives a guidance to the Fair Work Commission in the making of modern awards and how to deal with the question of penalty rates when making those awards. That will be a very important provision, indeed.

The Fair Work Act is an act which is working very well and it stands in stark contrast to what we had prior to this—which was, of course, Work Choices. Under the Fair Work Act, productivity is up—three times higher now than it was under the Work Choices legislation. Employment is up: more Australians, despite the global economic crisis, are employed today than ever before. A significant and critical measure when looking at efficacy of industrial relations legislation is that industrial disputes are down—on average around one-third the rate that was experienced during the time of the Howard government—and wages have been steady. Central to the fact that the Fair Work Act is working well is that at its heart lie collective bargaining and enterprise agreements. The act provides for an appropriate balance between workers and their employers and it provides for flexibility for employers and employees to reach the working arrangements they would want, but at the heart of this, in terms of the setting of standards, is collective bargaining. That is a very different philosophy to what the Howard government sought to do under Work Choices and what, if it were ever to happen, a future Abbott government would do in this sphere as well. What is in the DNA of the coalition is to have an industrial relations system which does not have at its heart collective bargaining between employers and their workforce but rather individual bargaining between an individual employee and their employer in circumstances where there can be no equality of bargaining power between those two entities.

Throughout our legal system there are notions of equality of bargaining power. In commercial law, for example, it is determined that where people do not have an equality of bargaining power then that can affect the legality of arrangements which are reached in those circumstances. But what we had under Work Choices was legislation which allowed for a situation where there would inevitably be an inequality of bargaining power, where an individual would be asked to go one-on-one with a multibillion-dollar company and seek to bargain on something which equated to equal terms. That is patently ridiculous, and it is why Work Choices was so unfair. And that is why any return to a legislated scheme of individual contracts would also be deeply unfair.

We know that, despite what is being said now, if there were to be a future Liberal government, that is exactly where a future Liberal government would head. We know that before 2004 there was no word about enacting Work Choices but, on gaining control of the Senate, that is the very first thing that the then Howard government did—the signature piece of legislation throughout that term of government, and not a word breathed of it in the election beforehand. We know that when AWAs were implemented under the basis of that, penalty rates were stripped away under most of the AWAs that were agreed to. We also know that since 2007 Tony Abbott has said, for example in 2008, 'Work Choices was good for wages, it was good for jobs and it was good for workers, and let's never forget that.' In 2009 he said, 'Workplace reform is one of the greatest achievements of the Howard government.' And in his book Battlelines he said that Work Choices was not all bad. That says everything when you bear in mind that, were they to be elected to government, the current policy of the opposition is to have an industrial relations system which would legislate for individual contracts. When you marry up Tony Abbott's comments with that now stated objective of the opposition were they to win government, it is completely clear what would happen in that event, and that is that workers would lose their rights as a result of a system of that kind. This act provides balance and that is what we need to keep.