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Tuesday, 24 September 2002
Page: 4772


Senator FORSHAW (6:27 PM) —Once again, we find ourselves debating legislation introduced by this government to pursue its ideological agenda to restrict the role of trade unions and deny workers the opportunity to collectively bargain. As we know, this has been an ideological obsession of the current Prime Minister from times well before he became Prime Minister, and it is an obsession that has been pursued by the government since it came to office in 1996.

This is not the first time that the contents of this legislation have been before this parliament. I will deal first with the Workplace Relations Amendment (Genuine Bargaining) Bill 2002. On two previous occasions the government has attempted to introduce similar legislation, namely, the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 and the Workplace Relations Amendment Bill 2000. One of the things that we note about this government's continuing attempts to wind back the entitlements of employees and the ability of trade unions to represent their members is the way in which it endeavours to create inventive, cuddly titles for its legislation. As we have seen, it once had the More Jobs, Better Pay bill, which did absolutely nothing of the sort.


Senator Crossin —Fewer jobs, worse pay!


Senator FORSHAW —It was about fewer jobs and worse pay. It also at one stage endeavoured to reduce the right of employees in small business to have access to unfair dismissal legislation. When that was defeated it brought the bill back again. It changed the title to the Workplace Relations Amendment (Fair Dismissal) Bill 2002.

The first bill that I want to talk about in this cognate debate is called the Workplace Relations Amendment (Genuine Bargaining) Bill 2002. When you see a title like that in legislation introduced by this coalition government, the first thing you can pretty well predict is that it is going to have absolutely nothing at all to do with genuine bargaining and, further, that it is actually going to try and ensure the very opposite. Of course that is what this bill does. It has three key features. The bill seeks to place more and more emphasis on enterprise bargaining by making it harder and harder for employees to obtain access to protected bargaining under the act. The major thrust of this proposed legislation is to try and outlaw what has become known as pattern bargaining or industry wide bargaining.

The bill also seeks to give the Australian Industrial Relations Commission new powers to suspend bargaining periods for a specified time. That proposal will remove the statutory protection available to persons engaged in industrial action in pursuance of a new workplace agreement. The irony of that last point is that the government—having spent the last six years taking away the powers of the Industrial Relations Commission, progressively stripping it of its powers and its ability to resolve industrial disputes by a number of means—now want to give the commission extra powers. But this time the extra powers that they want to give the commission are coercive powers; they are powers that the commission will be able to use to restrict the ability of workers to actually do what this government say they should be able to do—that is, to freely negotiate with their employers. I will come back to that in a minute.

The genuine bargaining bill provides, in particular, for the Industrial Relations Commission to consider whether industrial action during a bargaining period shows an intention to reach agreement with other persons in the industry. The bill specifies that such an intention would indicate that the organisation is not genuinely trying to reach an agreement with the other negotiating parties. This is what is otherwise known in the law as a strict liability offence. This bill says that, if the commission can determine that an organisation of employees is pursuing claims against a number of employers seeking agreement on the same claim—it is these days regarded, as I said, as pattern bargaining—those employees at that workplace do not have a legitimate intention to genuinely negotiate an agreement. Because somebody else might be seeking the same terms and conditions, the claim cannot be genuine.

The genuine bargaining bill will give the commission the discretion to order that a party who terminates the bargaining period may not initiate a new bargaining period in relation to the matters dealt with under the proposed agreement or may only initiate a new bargaining period on certain conditions. Further, the bill establishes what has been referred to as a `cooling-off period'. I note that Senator Marshall, in his excellent speech, previously dealt with that aspect in some detail. I said earlier that it is ironic but it is actually really hypocritical for this government—having taken away a lot of the powers and the ability of the commission to intervene in industrial disputes, to conciliate and arbitrate on issues to resolve industrial disputes—to now say, `Let's give the commission the power to suspend a bargaining period and call it a cooling-off period.' What is going to happen in the cooling-off period in those circumstances? It is all about endeavouring to frustrate the ability of the unions and the employees to negotiate their terms and conditions.

The Labor Party is opposed to the genuine bargaining bill and will be moving a series of amendments, as has been indicated, to seek to ensure that the right to bargain in good faith is recognised in this industrial relations legislation. We oppose the bill because it seeks to manipulate the role of the Industrial Relations Commission and limit its powers to resolve industrial disputes but at the same time give it powers which could be used in a coercive way to prevent employees and unions from pursuing their legitimate demands. The bill also sets up a situation where the discretion of the Industrial Relations Commission to deal with industrial disputes in the most appropriate way is further reduced.

Further on the genuine bargaining bill before I turn to the second bill we are debating, it is absolutely clear that this is just another political attack upon the trade union movement. The genuine bargaining bill does not have any underlying sense of fairness. It is one more initiative by a government seeking to find more and more ways to place impediments in the way of workers and their organisations to negotiate. Let us take this issue of pattern bargaining. The government says that we have to have a system of enterprise bargaining. This means that if employees at X company are seeking to negotiate certain claims and employees at Y company are also seeking to negotiate the same claims and they are all members of the same union, that cannot possibly be true enterprise bargaining and, therefore, should be outlawed. That of course attacks the collective nature of trade union representation in industries and across various employers.

Of course, that is not an ability that this government seeks to restrict for employers. Constantly, in this country, employers and their organisations adopt positions uniformly across the industry, or even nationally, to oppose certain initiatives and certain claims in the industrial relations field. We are seeing that this government itself encourages employers and their organisations to do this. The minister is out there saying, `You won't have paid maternity leave.' It will be over his dead body. He is saying to the employers of this country, `Do not agree to paid maternity leave; don't negotiate it.' He is saying that that should be the policy position of the employers.

Organisations such as the National Farmers Federation adopt national policies with respect to their approach to particular industrial issues. In my former career in a trade union, I experienced it in negotiating with the NFF. They had a position that was the same for every single employer in this country, whether they were the poorest farmer or the wealthiest grazier. It did not matter. As far as their policy was concerned, no employee should ever get a wage increase. They had a policy which said, `There shouldn't be any superannuation across the industry,' and they continue today to have policies and positions that are industry wide. It is a pattern across employers. Apparently this government believes it is all right for employers to adopt uniform positions, to go out there and argue and be supported by the government to oppose claims, but when unions seek to pursue initiatives across an industry that has to be outlawed. That is the great hypocrisy of this government's approach. There is one rule for unions and employees and an entirely different rule for employers. For employers, it is open slather.

In the remaining time I turn to the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002, the second bill before us. This bill basically provides that anybody proposing to take industrial action must apply to the Australian Industrial Relations Commission for a secret ballot after a bargaining period has commenced. The application must contain the questions to be put in the ballot, including the nature of the proposed industrial action. The Australian Industrial Relations Commission must, if practical, determine the application within two working days, and parties may make submissions to the Australian Industrial Relations Commission about the application. The AIRC must not allow the application unless it is satisfied that the applicant has been and is genuinely trying to reach agreement with the employer. The commission has a discretion to refuse a ballot on certain grounds, and the commission may order a ballot. Applicants are liable for the cost of the ballot. The legislation also provides that, for industrial action to be protected, 40 per cent of eligible voters must vote. This is the quorum requirement, and a majority of valid votes cast must authorise the action. I note that the quorum that is required in these secret ballots is more than the quorum that is required for this parliament to function. Forty per cent of eligible voters must vote for any decision to be valid. So this government is seeking to set a higher benchmark, a higher hurdle, than this parliament has set for itself.

Once again, this is simply legislation that is trying to frustrate the role of registered organisations—democratic trade unions—in being able to carry out their legitimate responsibilities of representing their members and of representing workers. It never ceases to amaze me that this government constantly attacks the very existence of the trade union movement. The minister responsible for this legislation in the Senate, Senator Alston, who is at the table, constantly vilifies the trade union movement. I will always keep reminding him that he may not like trade unions and he may not like the fact that they are associated with the Labor Party—and that is probably his real problem—but trade unions are a fundamental, inherent part of any democratic system. It is ultimately the dictators who attack collective bodies— whether it be trade unions, churches or political parties—to get their way. I would at least hope that one day this government might recognise that trade unions play a very constructive role in democracies around the world, and indeed are often fighting for the restoration of democracy.

This legislation is in line with a promise made by Robert Menzies in the 1949 campaign. He proposed to introduce similar measures to wind back the rights of employees at that time. So one thing, at least, is consistent about the current Prime Minister, Mr Howard—that is, Mr Howard is always looking back at past days.

Again, I contrast these proposals, which would put severely onerous and indeed unworkable prescriptions on workers and trade unions and their members, with the system that exists in the business community. First of all, trade unions are democratic registered organisations, and their members vote for their officials. That does not happen necessarily with employers. Indeed, where votes do take place, such as at annual general meetings of companies, you often find that the chairman holds thousands and thousands of proxies. The shareholders who do attend the annual general meeting may have a vote but they are probably not going to carry the day if the chairman is holding all the proxies that he or she has been given to exercise.


Senator Alston —That is democratic; they just didn't turn up.


Senator FORSHAW —Senator Alston says that that is democratic; they did not turn up. Senator Alston, why is it then that this government is proposing that there has to be a minimum of a 40 per cent quorum in the vote in a secret ballot of trade union members, or employees, before it can have effect? Why is that the case? That is your proposal. You are putting an onerous condition on workers that does not in any way exist for companies.

Furthermore, as we know, there is no provision for requiring secret ballots when the major corporations in this country make decisions that can affect the lives of all Australians and affect the economy, that can have a far greater impact on the national interest than an industrial dispute at one workplace can. Those sorts of decisions can be made in the boardrooms and have huge impacts, as we have seen in recent times in this country and in America. They can have catastrophic consequences on the economy. But where is this government putting extra control and extra regulation on the way those corporations exist?

My point here is that I am not in any way engaging in an attack upon the corporate world. Contrary to the belief of some members of the government, we support and encourage business, because it is ultimately through the existence of vibrant small business and large business and the private sector as a whole in this country that more people will be employed. But there has got to be consistency, and it is about time that this government stopped focusing on trying to find more and more ingenious ways to attack trade unions and their members and workers in this country and maybe started addressing some of the real issues that affect employees and their families in this country, issues such as the huge corporate collapses that have been brought about by maladministration and, indeed, corruption and other practices in some of our major corporations.

Debate interrupted.