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Thursday, 4 March 2004
Page: 20812


Senator JACINTA COLLINS (11:34 AM) —The Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 imposes severe and unreasonable new penalties on union officials and employees for noncompliance with commission or court orders under the Workplace Relations Act. There are a number of concerns about this bill, but I will start with its one-sided aspect. Whilst the bill talks about `officers or employees of registered organisations', in practice this simply means unions, and—whilst the government might have hoped superficially to demonstrate some level of balance—anyone who has practised in any way within the industrial relations field would understand that as a very obvious fact. Although registered organisations can and do include employer organisations, employer organisations do not engage in industrial action. Employers themselves engage in industrial action such as lockouts, but their employer organisations are not directly involved in such action and would not be affected by this legislation. This was confirmed by evidence to the Senate inquiry. The Australian Industry Group, for instance, admitted that they had never initiated industrial action. In answer to a question by Senator George Campbell about whether the offences in the bill were aimed at union officials or union employees, Mr Bennett, from the Department of Employment and Workplace Relations, replied:

I think that is a fair description, yes.

So on the government's own evidence, this bill aims to introduce severe new penalties for unions but it proposes nothing which might penalise employers engaging in illegal lockouts or other industrial action—a point I will come to later. It is appalling that the government has introduced 12 pieces of legislation into the parliament with one clear and consistent objective—to weaken the bargaining position of working Australians in negotiations with their employers. This government has consistently sought to intervene in workplaces relations issues on one side of the equation. That one side is obvious—that of the employers. I will come to that point later if I have the time. I hope also to address some of the comments made by Senator Santoro in his speech during the second reading debate on the immediately previous bill in this area.

The one-sided imposition of new penalties on union officials and employees for noncompliance with commission or court orders under the Workplace Relations Act confirms once again this government's biased approach to industrial relations. The government is entirely unconcerned about any possible employer wrongdoing. Not only does it not care to adjust the legislation, but it does not care to enforce the current legislation—another point I will come to in a moment.

The Department of Employment and Workplace Relations admitted to a recent Senate estimates hearing that it had initiated no prosecutions for nonpayment of employee entitlements with respect to the 2,419 complaints received from July to December 2003. It is no surprise that this legislation is only aimed at employees and officials of unions. Further, this bill is unreasonably punitive. The legislation potentially fines union officials and employees up to $2,200 for even the slightest slip with respect to a procedural direction or order of the commission. Being involved in a contravention triggers the punitive measures in the act, and this includes aiding, abetting, counselling or procuring the contravention, inducing the contravention by threats, promises or other means, being in any way knowingly concerned or party to a contravention and conspiring with others to effect the contravention. A contravention can be of any order or direction of the commission or the Federal Court. Potentially, this could be as simple as procedural directions.

But of most concern is that the legislation provides for automatic disqualification from holding union office for up to five years for anyone who is fined under these provisions. That of course would deny union officials the right to earn a living if they get even a minor fine or a minor breach. There is no precedent for such far-reaching and extreme automatic disqualification. Similar provisions in Corporations Law apply only to a serious criminal conduct, in recognition of the seriousness of denying someone their livelihood. But of course the severity of these provisions is entirely consistent with this government's vehement hatred of unions. It believes anything is fair if it threatens and hurts unions, their officials or their ability to assist workers to bargain.

Another aspect of this legislation is that it will allow ministers to intervene in a way which could prolong disputes. This legislation allows the minister—not just the employer but the minister—to continue divisive legal proceedings long after disputes have been finished and the parties are trying to work harmoniously again. In this respect we know the government has form. The former minister, Mr Abbott, wrote to the automotive industry and told them that they were not muscling up enough in their negotiations on enterprise bargaining with trade unions, the AMWU in particular. Of course, we all remember Mr Reith's intervention, for instance, on the waterfront. Remember those images of dogs and men in balaclavas—this sort of provision would assist that further.

I can recall the occasion some years back when I asked the department for their comprehension of how interventionist various ministers had been over time, and there had been no more interventionist minister in the industrial relations system than Mr Reith. This was under a government that has the rhetoric that we should allow the parties to sort these things out themselves. So its actions have been quite inconsistent with its rhetoric, but what its actions have demonstrated is that time and time again this government has sought to intervene on behalf of employers' interests. On the occasion I mentioned, the then Minister Abbott was very disappointed that his prophecy of rampant industrial disputation in the automotive industry in the context of some 1,400 enterprise bargains was not realised—the negotiations actually proceeded without industrial disputation. But with this legislation the government could intervene to inflame disputes even after a bargain has been struck. An interesting thing here is that the employers do not want these sorts of provisions; they fear the prospect of politicians getting involved in their affairs and they would prefer that that did not occur. Let us go to the little evidence to support the need for this bill.


Senator McGauran —Where is the evidence for what you are saying.


Senator JACINTA COLLINS —I will give you some evidence for what I am saying, Senator McGauran. I had some very recent evidence last week when we heard in the building industry inquiry from the Masters Builders Association of Queensland. It might shock you but in evidence before the Senate inquiry those employer representatives actually said, `We look forward to the prospect of Labor being able to institute its policy since 1996 to re-empower the commission to be able to be involved and settle disputes.' It is as clear and as stark as day. This is the problem with this government: it is not even going down the path of what sensible industrial practitioners say would help us effect what our industrial relations is meant to be there for and that is to settle disputes.

Let me go further to the little evidence to support the need for this bill. Legislation should not be brought before this parliament frivolously, and this is another bill that is doing just that. The Senate inquiry found that there was little evidence of a pattern of noncompliance with court or tribunal orders. Rates of industrial disputation—we hear about those time and time again from the government as well—are falling and the vast majority of industrial action complained about by the government is legally protected industrial action and would not be affected by this bill. The industrial action that is occurring is the legally protected industrial action within the system that this government created.

In the four-year period thoroughly examined by the department, it could only provide a list of 22 potential—and I stress potential—breaches of section 127 orders. Moreover, no finding of a breach was even made in a majority of these cases. Four years and 22 potential breaches, and no finding of a breach was even made in the majority of these cases. There are already a host of penalty provisions in the Workplace Relations Act as well as detailed provisions about what happens if commission or court orders are not complied with. But these apply, unlike these measures, to employers and to unions.

This bill rehashes provisions that were taken out of the government's Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002. They were taken out because they were totally unacceptable, and they remain totally unacceptable today. But dealing with these measures enables me to reflect on how Labor shares the Democrats' frustrations about a lack of a commitment by this government to the enforcement of employees' entitlements. The difference between our position and the Democrats' position, though, is that we do not believe a case has been made for a new regulatory body. We think the government should get more serious about ensuring that the current means of addressing these matters are being utilised, because there are already officers with clear responsibility for ensuring compliance with the Workplace Relations Act. They are the inspectors appointed under the act who are currently part of the Office of Workplace Services in the Department of Employment and Workplace Relations. The office have a budget of $9.5 million per year, yet in the last six months of 2003 they did not launch a single prosecution in respect of any of the complaints they received during that period. So there is a regulator funded to the tune of almost $10 million per year. The question—and it is a very serious question for the Senate in this case—is: what are they doing? What are their instructions? Why are they not pursuing matters through prosecution?

In respect of breaches of provisions of the act relating to industrial action by unions and employees, the evidence does not support the assertion that there is a problem. Labor do not believe that just because the government says there is a problem this means there actually is one. In fact, we have been encouraged by past conduct to conclude the contrary almost automatically. As I have already outlined, evidence to the Senate inquiry into this bill shows quite the opposite. Disputes are falling and almost all industrial action is legally protected.

Since I have some time remaining to speak to this bill, let me reflect on Senator Santoro's previous comments. Senator Santoro in his speech on the second reading on the earlier bill put forward that Labor, the Greens and, indeed, the Democrats could not claim a franchise for concern for the interests of workers and, indeed, for the role of unions. I thought it might be useful to run Senator Santoro through some of the history of these matters, of which I am sure Senator Murray is aware—certainly I am. Senator Murray, perhaps you and I are the only people who have been consistently through this process since about 1996.


Senator Murray —What about Senator Campbell? But he has left us.


Senator JACINTA COLLINS —That is right. Now that we have Senator Abetz there is a new player, but obviously Senator Santoro needs to be informed in a few areas as well.



Senator JACINTA COLLINS —Yes, but in a state parliament, Senator Abetz, and these issues have been matters of federal jurisdiction and the federal parliament for several years. When we dealt with the second wave of industrial relations reforms, the very comprehensive report that was produced by the Senate inquiry at that time reflected on a number of interesting issues. I have gone back to the joint statement that was prepared between the Australian Democrats and the Labor Party at that time, because I thought it gave us some very good issues to reflect on. At that stage we said:

The need to review the impact of the current Workplace Relations Act, as a major part of the Terms of Reference of this Inquiry, was agreed by all members of the Committee. It is therefore unfortunate that many important issues were not adequately canvassed in the Majority Report.

The majority report was essentially the government report. It continued:

Labor and Democrat Senators agree that a number of matters need close consideration in the context of the operations of the current act. These include that;

industrial relations law should include a social justice agenda—

There has not been much change there—

all workers need to be covered by an industrial instrument.

Australia meets its international obligations.

the industrial relations system should be focussed on the prevention and settlement of disputes through negotiation in the first instance.

However, as we hear from employers time and time again, their ability to resort to the commission in the latter instance is what is becoming more and more problematic in how the system operates today. Senator McGauran, that was the example I gave you of the Master Builders Association in Queensland. It is their principle concern. Going back to the other principles that should be in place in the system, the list continued:

the ability of workers to be able to balance their work and family lives must be promoted.

We know what little activity has occurred in that area, particularly since the interdepartmental committee leaked a report a couple of weeks ago. No activity has occurred. Even the interdepartmental bureaucrats are strongly recommending that to government, but there has been no action. The list continued:

the needs of workers vulnerable to discrimination are adequately protected.

Unfortunately, this is not the case. There is one area where we have finally made progress—that is:

adequate standards for Victorian workers are provided.

Finally:

there is a strong and independent industrial relations commission.

So we have had one very small area of progress where we have removed the ghetto that existed for Victorian workers, but on all of the rest of those points we have had essentially no progress at all. Why is that, one might ask? The reason is the government's attitude. Let me remind Senator Santoro of some of the rhetoric that comes from those within his party. We cited this reference at the beginning of chapter 4, which related to issues pertaining to the standing of the Australian Industrial Relations Commission. The Prime Minister said back in 1992:

As I've said before, I'm going to stab it ... in the stomach ...

He was referring to the Australian Industrial Relations Commission. This is the Prime Minister's attitude to the Australian Industrial Relations Commission: `I'm going to stab it in the stomach.' Yet, again, it does not represent the views that employers are arguing for. Their perspective was represented by Bob Herbert, who recently retired from the Australian Industry Group. This perspective was also put forward at the start of chapter 4 in this report. It stated:

Firstly, we do have a unique institution in this country. It has served us well for 100 years. You have to think long and hard about changing its role. We think that the balance that is now in the current legislation between conciliation and arbitration is about right.

But the government seeks to effect further changes. Why is that? There is another reference to chapter 8 that I thought was very interesting and perhaps Senator Santoro should contemplate this. Susan Halliday, who was appointed by the Prime Minister, John Howard, as the Sex Discrimination Commissioner, said this to a Senate inquiry in 1999:

It is fair to say that many employers will say that they can now be trusted to manage their employees without a third party and, my goodness, I think I have even written that rhetoric. But the reality is that I know some who can be trusted and some who cannot, and often the ones who cannot are the ones where we have least coverage industrially to do something about protecting their workers, and that is what concerns me.

What concerned Susan Halliday on this occasion was that the government was quite happy to spout the rhetoric of a bargaining system when it knew that the bargaining system would leave some groups vulnerable. Where there was actually some industrial militancy, for instance, in the construction industry or the maritime industry, then it would seek to intervene. That is exactly what happens. There is no honesty in this government's industrial relations agenda. If it wants a bargaining system then let us have a fair one.