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Wednesday, 25 September 2002
Page: 4806


Senator LUDWIG (Manager of Opposition Business in the Senate) (10:03 AM) —I rise to speak in relation to the Workplace Relations Amendment (Genuine Bargaining) Bill 2002 and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002. The second bill relates to what might be referred to, from the government's perspective and, I think, half-heartedly, as secret ballots. Before I deal substantially with the matters that I intend to raise this morning, it seems that there is a body of thought that goes something like this. The government introduced both of these bills some time ago in a number of slightly different forms from this—I think it is by now about the third time but I am open to correction. I am sure someone is keeping the statistics in relation to how many times this government has been pursuing this failed agenda. The earlier incarnations of these two bills were, perhaps from my perspective and not the government's, far harsher and contained, I thought, provisions that were untenable and not likely to work in the real world—certainly not in industrial relations, in any event. It seems that, if you listen to some of the speeches from the government, the bills are now in a much more amenable state—the government has listened and has moved to assist the process and has made some concessions. That seems to be the import of the government's view. You can see that in the two bills themselves: they are not reincarnations of the earlier bills that were being pushed by this government. They are, albeit slightly, different from the earlier versions and, some might say—certainly not I— in a form that can now be seriously considered and progressed.

However, it really begs a question. It is an old tactic. The government are almost saying, `We introduced a very hard version. Here is a very difficult bill; we know the opposition will not be able to support it so they will reject it. We will come back and try again a second time. We will come back a third time with a softer version. By that time we might have demonstrated to them that we have heard their complaints and they should now rise to meet us halfway.' To the opposition they say, `We have come down a little bit and now you should come up a little bit and pass the bills or at least seriously consider them.' But it is an old tactic. It is really one that the government should not consider and should not really bring back seriously. These bills are, and remain, flawed in my view. They are not about what their titles state. The Workplace Relations Amendment (Genuine Bargaining) Bill is not about genuine bargaining at all. It is far from it. The Workplace Relations Amendment (Secret Ballots for Protected Action) Bill is not about assisting the parties in industrial relations to enterprise bargain at all. It is not about helping the industrial relations system. It is not about helping employees bargain with employers. It is not about assisting unions to help their employees to bargain—not at all.

The government, in my view, seems hell-bent on introducing anti-employer—I cannot see that this legislation will assist employers either—anti-employee and anti-union legislation. It is still flawed not only from the perspective of employees but also from the perspective of employers. It creates unnecessary regulation and rules, and it creates unnecessary provisions for parties to be able to deal with industrial relations. Enterprise bargaining is the path that was set some time ago. It was introduced by Labor. If I recall correctly, Mr Brereton provided for enterprise bargaining in the industrial relations framework and it has continued. Other countries have dealt with enterprise bargaining over a longer period and, for all those detractors of enterprise bargaining, it is a system that allows parties to bargain and produce outcomes.

What this legislation does and what this government seems keen on doing is simply continue to complicate the issues, to make enterprise bargaining harder. You wonder whether this government is actually for enterprise bargaining at all or whether there is a subplot going on—whether the government, by continuing to introduce this type of legislation in this place, is really trying to say, `We are actually not for enterprise bargaining. We would rather go back to a different system.' I would be only too happy to hear from the government in its summation of the second reading debate about whether it still believes enterprise bargaining is worth it, whether it thinks that enterprise bargaining is still on the table and whether it is serious about enterprise bargaining being the main game.

This next matter is interesting and I did note it. I do not know whether it was a matter that the government had seriously thought about when they sat down to consider this bill, but I will give them the benefit of the doubt. In the reintroduced bill the government recognised that the Australian Industrial Relations Commission has continued with good faith bargaining. The term has reappeared in the amendments to this bill for the first time for some time. As we know, good faith bargaining was introduced by the Labor government, by Mr Brereton, in 1993 in legislation that was passed in 1994. Of course, enterprise bargaining predates that in a form, but I think the final or polished version of enterprise bargaining struck its pinnacle around the 1993-94 period. It was not until 1996 that this government, with its so-called reform agenda, started to pull that apart.

The idea of enterprise bargaining is for the parties to genuinely bargain and, in good faith, reach an agreement. The bill tries to prevent what this government calls `pattern bargaining' and introduces cooling-off periods. This is the government's third attempt to introduce this type of legislation. They tried in the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 and again in the Workplace Relations Amendment Bill 2000, which was a response to the AMWU's Campaign 2000. I think I said at the time that it was a flawed approach, and it continues to be a flawed approach.

The government modified its approach but this bill attempts, at least on the face of it, to be less prescriptive and requires the commission to suspend or terminate a bargaining period if certain conditions occur. This bill does not assist the enterprise bargaining framework, as I have articulated. In fact, the concern is that the continual meddling by this government with the industrial relations framework that was set might encourage those people who abandoned enterprise bargaining to see it in a very negative light, to then say that enterprise bargaining is not a positive and does not produce positive outcomes. Enterprise bargaining in truth is facilitative in the nature. As a framework, I suspect it tries to be unintrusive in the workplace to allow parties the latitude and freedom to enter into agreements. What this government should be doing is reformulating the concept of good faith bargaining to ensure that both sides, employees and employers, can deal with bargaining and include good faith bargaining in a positive framework.

As I said, this was a matter that was introduced in 1993. While this term is no longer in the act, except by way of amendment today—although I do not think the government went as far as perhaps I want it to go—the government has recognised, in part at least, that the term should not be removed entirely from the industrial relations framework. The concept continues to exist, and that is clear from recent decisions of the commission, such as the decision in relation to Joy Manufacturing Company. It also exists in other frameworks: in Queensland, New Zealand and New South Wales. One wonders why this government continues to rail against it. This government, by its continual assault and not having anything positive to say, runs the risk of ruining enterprise bargaining for those people that do benefit, in terms of productivity and wages. There is a duality concerned with enterprise bargaining. It is about promoting productivity improvements and wages outcomes. It is about having a win-win for those in the workplace. Perhaps the government might be able to clarify that in its summation of the second reading debate.

It would be better, in my view, to introduce good faith bargaining rather than pursue these `genuine bargaining' provisions and these provisions dealing with secret ballots. It would be better to look at formulating and complying with bargaining processes. It would be better for the government to introduce legislation—bills or regulations—or a framework, as I have been saying, which talks about how good faith bargaining should be proceeded with for people to be able to attend meetings at reasonable times and places and to consider and respond to proposals by the parties. None of these framework issues are within this legislation, and they are certainly not in the amendments that are being promoted by the government. Clearly, it is commonsense to allow facilitative provisions such as those to be put in. The government is bereft of new ideas, because it keeps coming back with the same matter and keeps pushing the same agenda rather than trying to sit down in a consultative way to look at what the industrial relations framework and enterprise bargaining really require.

What the government have failed to do is look forward into the system and say, `This is what the system needs to ensure that it will continue to be effective.' The government, in this instance, have failed to understand workplace relations and instead they concentrate on strike action, on the negative aspects, and say, `We need to stamp out these negative aspects.' But, by and large, they are also positive outcomes. They allow pressure to be released from the system. That is the nature of industrial relations. I think the government understand that; they are just ideologically driven on some of these matters.

That is not the main issue, in any event. Rather, the focus has been on looking at activities or outcomes and trying to work a way through that. The government really has missed the point. For example, the commission can deal adequately with industrial relations and it has, over the ensuing period, clearly been able to do that. It has, through Justice Munro, been able to articulate a range of outcomes for the parties to meet, to come to concluded agreements and to have successful enterprise bargaining. If the government were serious, it would be best for it to stop meddling, to look seriously at the program, to ask, `What does the program require?' and to talk to the parties. But the government does not seem to appreciate this; it does not really want to talk to the parties in industrial relations. It decides what it thinks is good and progresses it.

It seems to me that there is a whole range of issues that it can successfully deal with. Mr McClelland recently released a press release about foreign backpackers being paid below minimum wages; it could attempt to deal with that issue. It could attempt to deal with the issue of paid maternity leave, which was the subject of a Senate inquiry report dealing with how that matter might be progressed. The government might also deal with the issues of corporate governance, of whistleblower protection for employees to ensure that corporate misdeeds are exposed and of trusts where employees are involved. The government could also deal with an improved framework for good faith bargaining in industrial relations.

Good faith bargaining means that the parties can be compelled to sit down and discuss the issues. It does not go as far as saying, though—and I think this is one of the issues that sometimes the government really confuses—that the parties can be compelled to agree to things against their wishes, nor does it mean that the parties can assist with what is being sought—that is, what the matters are. If the commission did have the power— the subject of an amendment moved by Labor, and it appears that the Democrats' thinking is in a similar vein—that would allow the parties to structure the process, come to the table and deal with enterprise bargaining in a reasoned and structured sense. This would bring focus. If it had the power, the commission would be able to take the parties, sit them down and work it through— not tell them what the outcomes should be; that is not the commission's role during the enterprise bargaining process. It is designed to prevent unnecessary industrial action. It is designed to allow a safety valve. I recall that, in bargaining for outcomes, many times one of the difficulties was to get the employer to sit constructively at the table. The employer's short answer on many occasions was simply: `There's nothing for me to bargain for. I don't need to bargain. I don't want to sit at the table. I don't see anything constructive in it.' It was a very negative response. Sometimes, if you can get them to water, they will drink. They will find it valuable and they will usually entertain the process. There are certainly better outcomes that can be obtained through a process that deals with good faith bargaining.

Labor's proposed amendments, which will be dealt with during the committee stage, provide a basis for the parties to negotiate and to bargain in good faith. They make sure that the parties can abide by that duty and they ensure that the commission has the express power to make necessary orders to ensure that bargaining in good faith occurs. I think that they are good fundamental principles that enterprise bargaining should have. It is, as I have said, a matter that is a feature of most systems that use collective bargaining. It is provided for in the United States, Canada, the United Kingdom, New Zealand and in various states in Australia. It provides a formal, structured way—in a less informal setting sometimes—for parties to deal with the elements of bargaining. In other words, you have to come into a room; you have to have air, light, water and at least a conducive environment in which to sit down to ensure that the parties conduct their negotiations in a reasonable and thoughtful way.

However, as I have said, it should be made plain that good faith bargaining does not mean that the parties can be compelled to agree to things against their wishes. I suspect that is the bogyman that the government might put up. I certainly hope that they will not hide behind that. It is a process designed to ensure efficiency in the system. It is a process designed to allow the parties to negotiate and at least try to prevent the other party from frustrating matters, attempting to cause delays or using tactics intended to ensure that good faith bargaining does not occur. It is also a power that I think the commission would use fairly and openly. Labor's amendments are designed to help the parties in a non-partisan manner, unlike the government's bills, which really are only one side of the equation. They are targeted to the detriment of employees and unions, whereas, clearly, the opposition's position is equally targeted at all parties in industrial relations and provides a constructive and fair process.