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Wednesday, 25 September 2002
Page: 4809


Senator HUTCHINS (10:23 AM) —I rise to speak in opposition to the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002. Like many of the other workplace relations bills the government has brought before the Senate this year, this bill has already been rejected on several occasions. Like the others, this bill will fail to achieve any sort of necessary or productive reform. Like the so-called fair dismissals and non-compulsory union fees bills we have already looked at this year, this bill springs from the government's own ideological bent. Its aim is to undermine the bargaining position and strength of workers and the unions that represent them. Where the government has in the past used words like `fairness', `freedom of association' and `job creation' to try to cover and hide this agenda, this bill cloaks its real aims in the rhetoric of `workplace democracy'.

At the outset, it appears that the government is pursuing its stated aim in legislating to require workers to have a democratic ballot to decide whether or not they want to go on strike. But the reality is that the provisions of this bill are by and large unnecessary. The sole aim of this bill—its hidden aim—is to make it almost impossible for workers to take protected action. My concern about this step, about the frustrating role this bill seeks to play, is that it will result in two ultimate outcomes. Contrary to Australia's international obligations, it will seriously inhibit the rights of workers to take protected industrial action during a bargaining period. Consequently, what you will have is more and more workers resorting to wildcat strike action. This will ultimately undermine the high levels of industrial peace that Australia has achieved in recent years.

In the same way the government falsely claimed that the scrapping of unfair dismissal laws would create 50,000 jobs, it has engaged in a great deal of deception when selling this bill. In his second reading speech to the current bill, the Minister for Employment and Workplace Relations said:

A secret ballot ... will ensure that the right to protected industrial action is not abused by union officials pushing agendas unrelated to the workers at the workplace concerned.

In saying this, the minister is once again pushing this tired old rhetoric about the unions across this country, many of which represent the least skilled and vulnerable. He is pushing an image of unions and their elected representatives as chewing at the bit to go on strike, doing anything they can to disrupt industrial peace in this country and, in doing so, acting contrary to the will of the workers they represent.

But nothing could be further from the truth. If anything, this sort of rhetoric really goes to show how chronically out of touch the minister is with what is really going on in workplaces across Australia. Most unions have provisions in their own rules that require some sort of vote from their members to take place prior to the union leading the workers out on a strike. Some unions even conduct their own pre-strike secret ballots. If the minister actually got out there and had a look at what goes on in the factories, mines, yards and shop floors where many Australians go to work, he would see that in most cases it is the workers who direct their unions to lead them into industrial action.

As the years go by, levels of this sort of industrial action have been declining quite markedly. There have been unprecedented levels of industrial peace. In 2001 there were just 50 working days lost per 1,000 employees—a historic low. But even if there is a case where a worker feels as though they have been goaded into strike action against their will, they currently have recourse under the Workplace Relations Act to request a pre-strike secret ballot. They can go and see the Industrial Relations Commission, put their case and the commission may then order a pre-strike secret ballot. In addition to this, the commission itself has rights under the Workplace Relations Act to order a pre-strike ballot on its own initiative. By and large, the provisions of this bill are unneeded and unnecessary.

Pre-strike ballots are also unwanted by the workers this bill is supposed to protect. The fact is that there is no real need or desire on the part of workers for pre-strike secret ballots. The government would have this Senate believe that in workplaces across Australia hundreds of thousands of workers, under the weight of oppression from their union representatives, were being forced to go on strike. Despite the fact that the commission has the power to order pre-strike ballots, it has made only 12 such orders since 1996, either following a request to do so or on its own initiative. In the year 2000-01 it made only one order. There is no real demand coming from the workers for the sorts of pre-strike ballots that this bill will make compulsory.

So what is the real agenda? If the government were aware of the facts I have just outlined, as I am sure they are, then why would they put forward a bill like this? This bill is nothing short of an elaborate scheme to further frustrate the abilities of workers to take protected action when bargaining for better pay and conditions. In the labour market a worker's ability to withdraw his or her labour is the primary means of exerting economic pressure on employers during a bargaining process. Especially in lower paid and lower skilled jobs, industrial action is one of the few means workers have at their disposal to demand better pay and conditions, and the government do not like that at all. People like the Minister for Employment and Workplace Relations hate the fact that workers organise themselves into unions and then use their collective muscle to get decent pay and conditions for their members, and they want to do anything they can to undermine that ability.

That is all this bill is about. It is a scheme designed to make it nearly impossible for workers to go on strike and thus succeed in getting better pay and conditions for themselves. And it does this in a number of ways. By requiring a compulsory ballot to take place prior to any application for protected industrial action the bill will dramatically drag out the time it takes to get an action up and running. Some estimates hold that this could take up to six weeks. In addition, the complexity of the requirements for a valid application could make it relatively easy for unscrupulous employers to delay the process. They could argue a number of issues before the commission, such as procedural concerns or allegations that the union is engaging in pattern bargaining, which would then require a referral to a President Member. These time restraints can render any potential action ineffective, as industrial action, to be effective, usually requires some degree of spontaneity.

The bill's provisions also require any application for a secret ballot to contain precise details of the intended action, including the day or days on which it is to take place and its duration. This, combined with the fact that it is the applicants who must bear the overwhelming costs of running the ballot, will lock employees into a certain form of industrial action at a specified time. This could greatly extend the average time involved before reaching agreement. It also inhibits the flexible nature of bargaining, locking in workers to a scheduled timetable of industrial action.

The bill also requires that 40 per cent of affected workers must vote in a secret ballot to make up a quorum. Many workers do not want to become actively involved in workplace issues. They would rather leave those decisions to someone else—they would rather go along. A voluntary vote will result in a low turnout of voters. This will make it even harder to get strike action approved. Finally, in lower paid and low-skilled industries it may be even harder to succeed in having strike action approved due to higher levels of illiteracy and poor English speaking skills amongst workers.

All in all, the provisions of this bill make it incredibly time consuming, costly and difficult to have protected action approved. They do not act to encourage workplace democracy; rather, they merely deter workers from taking protected industrial action. The government would not want any system of protected action to work, because they do not believe in protected action at all. They do not believe in workers being allowed to take industrial action to better their pay and conditions. This bill will make taking protected action so difficult that it will simply be out of reach for most workers.

Inhibiting the right to strike is a serious breach of international labour law. It has also been argued that the provisions of this bill would put Australia further in breach of ILO convention No. 87. It would breach ILO principles that hold that legal procedures for declaring a strike, such as secret ballots, should be reasonable; should not place substantial limitations on the means of action open to trade unions; should not be so complicated as to make it practically impossible to declare a legal strike; and do not violate the principle of freedom of association so long as they promote democratic principles within trade union organisations.

As I mentioned earlier, in most cases a worker's ability to withdraw his or her labour is the primary means of exerting economic pressure on employers during a bargaining process. Industrial action, and even the threat of industrial action, is in many cases a means of ensuring that workers get decent pay and conditions. In my firm view, it should be taken as a last resort, but the possibility of it occurring ensures, especially in those industries employing low-paid and low-skilled workers, that workers bargain on an equal footing with their employer. It is incredibly naive, however, to think that because protected action is so difficult workers will simply not strike. They will simply take unprotected action. By removing the ability of workers and their representatives to partake in lawful industrial action, the government will be bringing on more wildcat strikes.

In the opinion of Professor Ron McCallum, a widely respected labour law expert and academic—who, I might add, was recently appointed to the position of Dean of the Faculty of Law at the University of Sydney—such wildcat action would inevitably take place, possibly against the advice of union representatives. Professor McCallum, in giving evidence to the Senate committee which reviewed this legislation, said:

Such a bureaucratic system will drop industrial action down from union executives and union secretaries to wildcat action. I think we will see an increase in short-term wildcat action.

This has definitely been the experience in Western Australia, where the former Court Liberal government introduced similar pre-strike secret ballot requirements. Since the introduction of these laws, not one application has been made for protected industrial action. I repeat: not one. But this does not mean that there has been uninterrupted industrial peace in Western Australia. Of course, there has been industrial action over there. And because of the excessive and in most cases unworkable bureaucratic requirements workers are choosing to take unprotected action.

I say in conclusion that this is the sort of industrial anarchy to which this government wants Australia to return. It wants to undermine workers' right to strike and take away their primary means of lifting themselves to an equal bargaining position with their employer. This government hates the idea that workers can be put on an equal footing with employers when they work together for better outcomes. Every piece of industrial legislation that we have seen before us in this chamber this year has been aimed at undermining their ability to do so. This bill is no different and it should be rejected accordingly.