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Thursday, 4 March 2004
Page: 20821


Senator LUDWIG (12:13 PM) —May I say in response to that issue of a unitary system, where Senator Murray raises the issue about national matters and national issues, that the experience I have had is that disputes tend to be, unfortunately, local. Usually the best people to deal with them are those on the ground at that local dispute in the local area, rather than those dealing with them from a national perspective. That is not to say that there is not a need for uniformity or some way of ensuring that there are similar laws. But what I have mostly found in my experience—and it goes back some years now—is that in many instances these sorts of things are in fact local, and without local experience, local knowledge and local considerations taken into account when dealing with many of these things they are simply not going to be resolved. A dispute in Mount Isa is not going to be resolved if you have to fly from Mount Isa to Melbourne because the national office happens to be in Melbourne. But that aside, I do understand the direction in which Senator Murray is going.

The Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 is designed to once again attack unions and otherwise try to provoke legitimate unions to respond to unworkable legislation. The bill seeks to provide a means by which the minister can seek financial penalties for noncompliance with orders of the Australian Industrial Relations Commission and the Federal Court. It also provides a default disqualification of officers and employees of registered organisations who are fined as a consequence of the penalty provision mentioned.

The reason for this bill seems to be that this element was not proceeded with at the time the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002 was dealt with—and probably for good reason. I think the reason is as valid today as it was then: it is unnecessary and it is unworkable. This was highlighted back then. The arguments were put then, and I think that the reason the government dropped it then was that they were also persuaded that it was unworkable and unnecessary. It seems to me that in bringing it up again now Mr Andrews, the Minister for Employment and Workplace Relations, either feels it necessary to have another tilt at the windmill or, alternatively, has riding instructions from Mr Howard to have another tilt at the windmill. In any event, he is tilting at the windmill.

The Bills Digest suggests a lack of compliance with orders issued under section 127 of the Workplace Relations Act as one reason. However, when you read the report on this bill by the Senate Employment, Workplace Relations and Education Legislation Committee you see that very little evidence has been put forward to substantiate a provision as onerous as this being put in place to deal with those matters. The idea of an independent tribunal, the Industrial Relations Commission, is that it have the necessary powers within its own jurisdiction to enable it to deal with workplace relations, whether on a national basis—as Senator Murray might suggest—or at a local level.

The provisions are enforceable in the Federal Court under section 127(6) of the Workplace Relations Act anyway. The scheme of the federal act, which is similar to those of the states, has provisions which are designed to ensure that an independent tribunal has the necessary powers to both issue orders and enforce those orders and, if necessary, allow the participants in the system to consider whether or not Federal Court action should be taken. These matters rely on the parties to make judgment calls given the nature and length of the dispute and what the actual disobedience in relation to the dispute might be, rather than have a third party such as the minister decide—persuaded by other interests or other reasons—to act in relation to a dispute.

What the parties should be doing is getting over the dispute as quickly as they can and getting back to work—dealing with those sorts of issues rather than subsidiary issues whereby either party might have to deal with a minister who wants to enforce a particular order once the dispute itself has long gone. You might even have the ridiculous situation where both parties are asking the minister to desist, should this bill become law. You need to see that the parties are not left in the position of being unable to deal effectively with the dispute on their own terms, settle it and get on with their work where it is needed, letting the angst or anger that may have surrounded a particular matter slide into the background.

The reason for the additional provision is apparently that employers are, as the minister might put it, reluctant to enforce their rights in that court. It is suggested that the present law does not seem adequate. However, I think the onus is on the minister, if he is serious about putting this bill up, to be able to say: `Here is widespread disobedience in relation to orders. Here is a pattern of disobedience. Here is something that requires addressing.' There is none of that. That has been highlighted in the committee report, and I will refer to it should I have time.

In addition, it seeks to allow a person to go directly to the Federal Court seeking orders if the original order is not complied with, and the enforcement is available in the form of an injunction in the Federal Court. That is already there and available. The parties to the dispute are able to deal with it under the Workplace Relations Act. In circumstances where industrial action is being taken with the intent to coerce someone to make, vary or terminate a certified agreement—section 170NC—or is being taken during the life of a certified agreement—section 170MN—the parties may go directly to the Federal Court to seek an injunction. If the injunction is not complied with, a person may be exposed to a prosecution for contempt of court, which is punishable by fines or imprisonment. That is within the act as it stands.

There are also common law actions available to employers. These are generally referred to as economic torts. They include interference with contract, intimidation, conspiracy and interference with trade or business by unlawful means if they take unprotected industrial action. So you would have to say that the scheme of the Workplace Relations Act is comprehensive. Now we have the minister saying, `Notwithstanding those provisions, I want to be an arbiter.' If Mr Andrews wants to be commissioner, I am sure the commission could invite him to come along or he could certainly put the cap on himself and go there. I do not think that is what he wants to be, but that is what he is setting himself up to be—or at least he will pass the enforcement provisions to his department. If he does not feel up to doing it himself in his own name, he wants the department to run around with a big stick.

The question is: why is the government pursuing this agenda? This bill has been around for some time. I think it was introduced back in February 2003. It was first introduced by Mr Abbott, who took over the reins from Mr Reith. I think I said the same thing then in relation to another bill as I have now. There was a unique opportunity for Mr Abbott to break with the past—to break with the views held by Mr Reith in relation to workers and workplace relations which were negative and wrong—and to start a reasonable dialogue about industrial relations and take a cooperative approach. Mr Abbott chose not to do that. That was his decision. There is nothing I can do about that. I think it was wrong, I think it was short-sighted and I think it was a very poor decision to make.

Mr Andrews has been offered the same choice. He has the same ability to take a cooperative approach in industrial relations and to do something different. He could say, `I am the Minister for Employment and Workplace Relations and I don't have to follow Mr Reith and Mr Abbott.' Unfortunately, it appears that he is going to fall into line and march to the same tune. It is a shame, but it is really not surprising, because all along the instructions have been coming from Mr Howard. When you see that pattern develop over time, I do not think you can jump to the conclusion that they all have the same view. I think they have been following the song sheet given to them by Mr Howard. It is probably time Mr Howard broke with the past and actually put the hat on himself and said, `Not only am I Prime Minister but I am also minister for everything.' That seems to be what the coalition allow him to do. It appears to be a particular Liberal tradition to be a follower rather than to strike out, do something more innovative, talk to people, be cooperative and deal with issues as they arise.

When you break down the reasons for the bill, I suggest they disappear. There is no reason to put forward this bill. It is not fixing an existing widespread problem. It is not fixing a slip in the legislation. It is not addressing a wrong that might exist. It is simply an onerous provision which is being placed before the Senate to highlight again how tough the coalition government is on workplace relations—or how tough Mr Andrews is. I do not think it actually proves that at all. At a minimum, you would expect that the government could demonstrate that the present powers are deficient or lacking in some way, but the explanatory memorandum does not go there. The government cannot, and have not in this debate, point to any great deficiency. The government have produced some rubbery figures about who has not complied with court orders, but that does not actually highlight what the issue is. They have simply plucked out figures and said, `Here is a number of court orders that have not been complied with.' But they have not provided a snapshot of the reasons, such as both parties disengaging from the order themselves, or the parties settling the dispute by deciding to not proceed with the orders because the primary aim was to get back to work or, in other words, to move on.

It sometimes strikes me that this government has no workplace relations agenda. Some of these matters really came from consideration of the provisions of the earlier bill, the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999. It was colloquially referred to as the More Jobs Better Pay legislation. As I said earlier, it related in part to the registration of organisations, and it is now a separate piece of legislation here. That was also a favourite tactic of Mr Reith: if he could not get an omnibus bill, he would slice it up and deal with it in a piecemeal fashion to take the time of the Senate. I think the Liberals hanker for the days when workers were expected to tug their forelock and say, `Yes, Sire.' It seems to me that is the only reason you would seek the type of legislation that is now before the Senate. A number of bills have been introduced, all of them designed to provide some punitive measure against workers or their unions.

As I have said, we have many workplace relations bills before the Senate. The government has struck another hole. It is not simply a hole in the need for the bill but a hole in its legislative agenda. All these bills have been hanging around for some time, and I doubt if the government is particularly serious about any of them. The reason for the bill can only be either to fill the program as the government has no real legislative agenda or that the minister is trying to fill up the program on behalf of his colleagues because they do not have any legislative agenda. The only other possibility is that Mr Andrews is trying to make a name for himself and whip up a bit of hysteria amongst unions by doing a bit of union bashing. Perhaps I should give him a little more credit than that. Reith tried it and failed; Abbott tried it and failed. I do not think Mr Andrews would do it a third time, but it is always potentially open to him to consider it. Either way, I suspect Mr Andrews is hoping that recycling the ideological agenda of others might help. In fact, it is counterproductive and reflects badly upon him.

Industrial relations in Australia is in need of fairness, honesty and integrity—qualities which I think are lacking in the government. On the other hand, we have a government that promotes greed in the corporate world but that tries to enforce strict compliance in the workplace relations area, where the rules and legislation are designed to ensure that the work force is shocked into complying with the wishes of their bosses. The government is not really serious, in my view, about this bill. There are many other areas it could turn its mind to addressing rather than attacking unions or workplaces with this type of legislation. If the government were really serious, it could look at the corporate world and deal with that.

The real sting in this legislation is that the minister, it appears, wants to be an industrial police person. The bill states that the minister is to be the person to make an application under this part for a contravention of these provisions. The minister has, it seems, taken the view that the employers are incapable of engaging in constructive dialogue with their employees about structuring a win-win in the workplace. I think at the end of the day what Mr Andrews is really saying is that he has no confidence in the ability of employers to deal constructively in the workplace with industrial relations. There appears to be no great desire by the employers, or no stampede by the employers, to support Mr Andrews on this bill.

I alluded earlier to the Employment, Workplace Relations and Education Legislation Committee report. The committee dealt with three bills, but its report on this bill states at paragraph 1.36:

Further, ACCI supports the provisions of the bill, but indicates in its submission that two amendments could be made to enable the Senate to endorse the bill—by limiting automatic disqualification to certain types of non-compliance or by providing for a general discretion to order disqualification.

What they are really saying, as to the main thrust of the bill, is that they would rather amend it than see it introduced in the form that it is currently in. The ACCI have indicated their view on these sorts of things and I do not think the bill finds general support among other employers. The government has been at pains to point out how necessary the bill is but I think on the whole it has failed to convince anyone that it is really necessary. It is likely that, given the opportunity, the minister will in his summing up plead his case, but I do not think he will be able to demonstrate that there is a need for this type of legislation, and the support that he might otherwise garner is not there to demonstrate its need either.

The bill does nothing to ensure that there is equity in the workplace. The bill does nothing to ensure there is integrity in the workplace. The bill does nothing to ensure there is even good-faith bargaining in the workplace. One of those areas dealing with good-faith bargaining is something that the minister could champion if the government so desired. In February, the Howard government decided to advocate in the wage case before the Australian Industrial Relations Commission a $10 a week increase. The states supported a $20 a week claim, which also had the backing of federal Labor. This case provides a stark contrast. On the one hand you have a government that says to workers, `What we want to do is introduce punitive provisions. What we want to introduce will ensure that you do not get a fair increase in wages.' On the other hand you have a government that says, `Trust us, we know what's best.' I think the writing is clear: this government has failed to deal with workplace relations and has failed to turn its mind to how to ensure that there is cooperation in the workplace.

When you look at comparisons with the corporate world, you see that this government has done nothing to rein in the greed and excesses that exist there. So on one hand you have the government saying, `Look, we don't want workers to get more than a $10 increase,' but, on the other hand, you have the ex-CEO of Southcorp, Mr Keith Lambert, who took home a $4.4 million package after only 18 months in the job; David Higgins, the ex-CEO of Lend Lease, who took home $8 million, despite his company recording a huge loss that year; and David Murray, who took home $2.5 million from the Commonwealth Bank, despite a slump of 24 per cent in the profits of the bank that year. I think the government sometimes misses the message, but the people in the community do not: they understand very well what those figures mean and how much those in the corporate world are getting away with in terms of corporate greed and excesses—and this government is doing nothing about it. They also know what this government is trying to do in industrial relations, which is counterproductive, hurtful and designed to ensure workers do not get a fair and even break. That position that the Howard government has adopted is not lost on the community. It does not sit well. It is a sad story when the government intervenes in the commission but does nothing about the corporate greed that runs amok. (Time expired)