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Tuesday, 24 September 2002
Page: 4768


Senator MARSHALL (6:07 PM) —I rise to talk on the Workplace Relations Amendment (Genuine Bargaining) Bill 2002, which is part of a larger package of antiworker, antiunion bills, in line with this government's passion for the dismantling of Australia's industrial relations system. This particular bill articulates one of this government's major obsessions. As the Minister for Employment and Workplace Relations stipulated in his second reading speech, it is designed to ensure that what is often referred to as pattern bargaining is no longer permitted under the Workplace Relations Act. An obsession it definitely is, when you consider that the Senate has already rejected the ideology and intent behind this bill in both 1999 and 2000. Yet, in 2002, the government has chosen to pursue it again, this time disguised as the Workplace Relations Amendment (Genuine Bargaining) Bill.

This year's model is dressed up as a more moderate version of the bills already rejected, but it brings with it the same intent and the same probable outcomes. While the bill in 2000 sought to outlaw union initiated pattern bargaining altogether, this bill does not expressly prohibit that. What it does instead is seek to interpret pattern bargaining as being, prima facie, not genuine bargaining and therefore regard it to be in contravention of the Workplace Relations Act. This bill is simply a different path to achieve the same outcomes as those bills that were initiated in 1999 and 2000. As such, the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 should be abandoned on the same basis as those that have been in the past.

This bill, along with those in 1999 and 2000, is unjustified and iniquitous. The words `genuine bargaining' in the title of this bill are nothing more than Orwellian doublespeak. It is a typical ploy of this government to use ambiguous language and euphemisms to disguise its real agenda. This bill is no different. There is nothing in this proposal that promotes genuine bargaining at all, despite its title. In fact, it seeks to stamp out particular kinds of bargaining altogether and to tie the hands of the independent umpire, the Australian Industrial Relations Commission, when determining whether or not parties to an industrial negotiation are in fact genuinely bargaining.

This bill, like most workplace relations bills we have seen from this government since it came to office, seeks to tinker with the industrial relations system in a way that stifles collective bargaining and the ability of workers to negotiate pay and working conditions with their employers on some sort of equal footing. This bill seeks to limit the capacity of ordinary workers to seek better standards of living and to share in the benefits delivered by improved productivity over the past two decades by even further tilting the industrial relations power scales in favour of employers and away from ordinary workers and their unions.

This government seeks to abandon any framework for cooperative workplace relations that support fair and effective agreement making in support of the interests of its core constituency: big business employers. We only have to go to the Australian Industry Group, the AIG, to find out why. This is what Roger Boland from the AIG had to say about the state of our industrial relations system in a speech entitled `A critical assessment of progress in enterprise bargaining':

Where employers have adopted a bargaining strategy, in many instances it is driven by an exclusive desire to cut costs rather than pursue innovation. Now that is completely understandable in today's competitive environment. But it is a blinkered approach to achieving competitiveness through workplace change and is creating a backlash amongst workers manifested in intense feelings of job insecurity, disillusionment, lack of trust, “reform fatigue” and a shift to greater militancy. The isolated bargaining approach is leading to competition on the basis of labour exploitation rather than on the basis of innovation and quality of skills.

With the Australian Industry Group itself recognising that a more decentralised bargaining system is creating a backlash amongst workers, is it any wonder that this government would like to see this bill pass through the parliament to protect big business from a problem of their own making?

The Workplace Relations Amendment (Genuine Bargaining) Bill 2002 seeks to prohibit the use of pattern bargaining—a process by which common claims are sought across an array of workplaces within the same industry. It is a bargaining strategy currently utilised by many employers, union members and even the federal government itself. Pattern bargaining has been responsible for the setting of industry-wide standards of occupational health and safety, comparative wage justice, equal pay for men and women, parental leave, the 38-hour week and superannuation. In recent years, industry-wide bargaining has seen the introduction of income protection insurance and improvements to long service leave. Moreover, it sets standards across industries that provide consistency and stability for employers and workers alike on issues such as the use of casual labour, outsourced contracting and redundancy standards. Could this be the reason the government is seeking to forbid it? I suggest it probably is.

This government supports a race to the bottom for wages and conditions and rejects fairness and equity within industry sectors. What is so unreasonable about suggesting that what one group of workers receives in pay and conditions in one workplace should be mirrored in another workplace where that group of workers undertakes the same work using the same skills? Take the education sector, for instance. Isn't it reasonable to suggest that what one teacher receives in pay and conditions teaching a group of grade 6 students in one school should be the same as a grade 6 teacher in another school, teaching the same syllabus to a similar group of students? Surely, it is in the public interest that there is a general consistency across the nation in wages and conditions for Australia's school teachers. I think most people would believe so, and I believe so. But this government plans to outlaw this approach.

Employers in the non-government education industry agree. In fact, these employers support and engage in pattern bargaining and have not expressed any concerns about common outcomes or any desire for different outcomes across schools and educational institutions. As the Australian Catholic Commission for Employment Relations stated in its submission to the Senate Employment, Workplace Relations and Education Legislation Committee inquiry into the Workplace Relations Amendment Bill 2000:

It may be unnecessarily time consuming and costly for similar enterprises, undertaking similar work, to establish separate enterprise agreements, especially where the organisation seeks to bargain on a industry wide level to ensure equity in its outcomes to its employees and in its delivery of services. For example, this is found in parts of education, where a large number of schools may act in cooperation with each other and not in competition, as they are not equipped to bargain individually and they seek to achieve mutual outcomes.

The same could be said for many areas in the health sector and the public sector, to name just two. This bill, if supported, would have the effect of rewarding those businesses that are most unscrupulous in respect of negotiating wages and conditions with their work force and, as such, it will render those companies that do not undercut their employees uncompetitive.

Industry-wide bargaining has the effect of protecting businesses that do not seek to exploit their employees by undercutting decent workplace standards. Many small businesses use multiple employer agreements on the basis that they are the only way in which they, as small businesses, can effectively bargain and apply in an affordable way their limited resources to the process of making an enterprise agreement. Industry-wide bargaining removes the instability created for end users when every one of their suppliers potentially has an industrial dispute during the life of their agreements, each expiring at different times. Can you imagine the car industry, which may have over 500 different suppliers, potentially having a dispute every couple of weeks that could shut down their industry? Can you imagine a large construction site that may proceed for two years or more having a dispute at some time during the course of construction with each and every subcontractor, with each dispute causing delays and cost blow-outs?

As I mentioned earlier, the use of pattern bargaining is currently a strategy embraced by the federal government itself in relation to negotiating the pay and conditions of workers within the public sector. For instance, the federal government has just recently required universities to achieve specific outcomes in enterprise agreements in order to be eligible for supplementary salary funding. In this situation, the federal government has realised the benefits of industry-wide bargaining. It realises that it is often a more efficient and cost-effective way of undertaking its negotiations and achieving industry-consistent outcomes.

But, while the government sees fit to use pattern bargaining in its negotiations, it seeks to impose unequivocal restrictions on use by trade unions of the same procedure. The bill is just another example of an antiworker government. The government would have us believe that this bill has been inspired by the decision of Justice Munro in Australian Industry Group v. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.Justice Munro seems to be a most unwilling accomplice to the government's agenda. In his decision, Justice Munro said:

A common set of demands for conditions of employment, or for timing of negotiating rounds and outcomes is not sufficient in itself to establish that a negotiating party is not genuinely trying to reach agreement with the counterpart party.

It is for this reason that the government is pursuing the bill: quite simply, because it is the opinion of the independent umpire that pattern bargaining is not necessarily in itself a display of thwarting the bargaining process. This government has chosen to legislate in order to declare that it is and to outlaw it. Justice Munro demonstrated during the Metals case that the commission's discretion to determine whether or not a party is genuinely trying to reach an agreement is available to be used in a wide range of circumstances. Justice Munro used section 170MW(2)(b) of the Workplace Relations Act, which specifically empowers the commission to suspend or terminate bargaining periods where a party is not genuinely trying to reach an agreement with the other negotiating parties. Justice Munro terminated bargaining periods against numerous employers because the relevant trade union was not believed to be signifying a genuine approach to the negotiation.

This legislation is not about empowering the commission to ensure that parties approach bargaining in a genuine fashion, because it already has that power. It is simply about outlawing a bargaining process that may afford workers across a number of enterprises similar outcomes which may be to their benefit. Likewise, the introduction of a new cooling-off period does not have much merit, as the commission already has the relevant power to order informal cooling-off periods under section 170MW. It has that power now if it is in the public interest and if it is to be of benefit to the negotiation.

If cooling-off periods were to have any relevance, they could be of use only where the commission itself has formed the opinion that it would genuinely assist the parties for this to occur. The last thing negotiating parties need is further bureaucratic systems of cooling-off periods that in many cases will simply not assist the negotiation or may even prolong it more than necessary. The Australian Industrial Relations Commission does not require a set of ideological rules with which to operate; it requires the power to compel parties to bargain in good faith. That is what is fundamentally lacking in our industrial relations system, certainly not the contents of this bill.

The Australian Labor Party is committed to an industrial relations system that embraces the notion of bargaining in good faith. That means empowering the Australian Industrial Relations Commission to require that parties meet face to face; attend meetings that have been organised; comply with negotiating procedures; disclose relevant information to allow for an informed negotiation, subject to confidentially agreements; state their position on various issues; explain their position on issues; consider and respond to proposals made by the other side; and adhere to commitments given to the other negotiating party as to how they would progress matters. These are practical measures and commonsense. They are designed to reach agreement, not to make it more difficult to resolve, as this bill would have it.

In an increasingly global world and global economy, we must also be extremely mindful of our international obligations when we consider new laws. While the act as it stands does not comply with existing ILO conventions to which Australia is a signatory, the bill before us defiantly seeks to contravene those conventions even further. This government's proposal to outlaw multi-employer bargaining is unprecedented throughout the developed industrialised world. Nowhere are there restrictions on industry-wide agreement making like those that would exist in Australia if this bill were to pass the test of parliament.

This proposal and those of the past have been criticised by the International Labour Organisation and its Committee of Experts, a group of internationally eminent independent jurists. In fact, the Workplace Relations Act as a whole, as it stands unamended at the moment, has been condemned by the Committee of Experts for breaches of conventions 87 and 98 of the International Labour Organisation because of the excessive restrictions it places on industrial action in pursuit of multi-employer or industry-wide bargaining. It is important to note that the right to strike, to bargain collectively and to engage in and take industrial action at any level, be it national, industry or workplace, are now considered basic human rights and core labour standards. This bill clearly impedes those rights.

This bill is an unnecessary and unfounded attack on the rights of employees and unions, and it has a potentially detrimental effect on numerous industries and employers. There is no legitimate reason for the bill. There are no industrial circumstances that warrant such proposals. In fact, the passage of this bill would make enterprise negotiations more difficult and cumbersome. Even where employers agreed that claims were socially desirable and industrially and economically reasonable, they could fall foul of the act. It is ill thought out and it should be rejected.

In the few moments I have left I want to address one thing that I have heard during this debate. A number of speakers have talked about the success of the current industrial relations environment and how all workers seem to have participated in the increases in wage levels. While that may be the case on average, it does not describe the full story. What we actually have in the case of an industrial relations negotiation is a power system where some people, predominantly organised labour, can in fact do quite well under a system that promotes individual enterprise bargaining but where those who do not have organisational power or who have no power at all for negotiating with their employer have been left behind.


Senator McGauran —No, they've got a choice!


Senator MARSHALL —They have a choice to go onto the poverty line. I know that is where you would like to have them. Cheap labour is what you would like to support and promote. It exists in and works for some countries, but it is not what Australian workers and our community want here.


Senator Carr —Feudal relations in Gippsland, that's what he wants!


Senator MARSHALL —That is what he wants. He wants a number of servants to put the silver spoon in and out of his mouth. Let us have a look at the metal manufacturing industry. It is worth taking a closer look at it, because it provides an interesting case study of the impact of enterprise bargaining on earning dispersions within occupations. During the 1980s, wage relativities remained almost constant. In 1983, for example, process workers under the metal industry award earned 82 per cent of the fitter's rate, a proportion that remained virtually unchanged in 1991. In the 1990s, however, this situation began to change as a growing disparity in earnings between those on agreements and those reliant on safety net increases began to emerge. Since 1991, the cumulative growth in wages for the former has been in the range of 27 to 31 per cent, while the cumulative outcome for the latter has only been in the order of eight per cent in total.

In the decade from 1986 to 1995, male trades workers improved their wages by about 56 per cent in nominal terms, but this outcome favoured the more highly paid workers. Those in the lowest quartile gained only a 49 per cent increase, while for those in the top quartile the increase was 66 per cent. A similar pattern was evident amongst both male and female labourers, with the starkest difference occurring amongst the women. The difficulty with this is that we have a growing disparity between those who have and those who do not. There is more and more evidence being displayed every day in our communities that we have this underclass of working poor.


Senator McGauran —But they're not getting poorer!


Senator Crossin —How would you know?


Senator MARSHALL —You would not know, because I do not think you really come across many workers every day, Senator McGauran.


Senator Carr —Not in Collins Street, you don't!


Senator MARSHALL —And certainly not down on the farm, where he comes from. I really do not think that he ought to get up in this chamber and suggest that he has the interests of workers at heart when his government introduces what is clearly antiunion and antiworker legislation.