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Thursday, 2 December 2004
Page: 49


Senator GEORGE CAMPBELL (12:40 PM) —I want to make some brief remarks on the Workplace Relations Amendment (Agreement Validation) Bill 2004 currently before the chamber to draw attention to two particular aspects of the bill, which I think Senator Marshall may have already referred to. I want to make the point that, despite the claim by the government that this legislation seeks to remove uncertainty that has been created as a result of the Electrolux decision, that will not be achieved by the application of this bill. I also want to take this opportunity to make a couple of comments about Senator Santoro's contribution and his use of the words `obstruction' and `deceit'. Those of us who have been in this chamber since the coalition came to power in 1996 know the way in which the English language has been distorted in legislation which has been brought before this chamber in the area of industrial relations. It has been deliberately used to create the perception that bills on industrial relations are somehow achieving something different from what they actually set out to achieve. The classic example of that is the `fair dismissal' bill. It went from being the unfair dismissal bill to the fair dismissal bill. We have seen a similar use of language in a range of other legislation. So, if there has been any deceit practised in this chamber or in this parliament in the area of industrial relations, it has been practised very effectively by the senators on the other side of the chamber.

On the issue of the validation bill and the Electrolux decision, there are two issues that are of real concern in the application of this law. There is the fact that employees who have entered into agreements in good faith and who have traded off conditions of employment in a number of areas for other elements in a package on the basis that the total package of conditions will apply to them as a result of those negotiations—and who have had that tested against a `no disadvantage' test, which is a critical element of judging the veracity of agreements entered into—may well be disadvantaged as a result of the application of this law. In fact they may well have conditions taken away from them that they entered into in good faith.

Consistently we have heard those on the other side of the chamber say in debates on industrial relations, `Our objective is to take the third party out of the relationship.' They say that the relationship ought to be between the employee and the employer, and that both sides ought to be able to sit down and negotiate arrangements that satisfy the work force in their workplace, reaching agreement on a set of conditions that will make their workplace flexible, efficient and effective in competing in the marketplace. It is not possible to do that now because at any stage of the process the courts may come in and determine on a legal basis that there are matters that those individuals have negotiated that do not go to the employee-employer relationship.

When you travel around this country and visit factories—I have visited a lot of them in the past three years in my other role as shadow parliamentary secretary for manufacturing—you see that there are no lawyers about. The employers in many of these factories, the bosses, are usually people who have worked with their hands, graduated and set up their own companies. They then employ people with particular skills who are focused on their capacity to repair an engine or build a boat or whatever else they do. These are not people with legal qualifications. They are not people who sit down before they start a process of negotiation and read through the objects of the Workplace Relations Act to ensure that what they are setting out to negotiate complies with the requirements of the act. Nor do the employers do so.

These are people who sit around a table and say, `What are our problems, and how do we set about fixing them?' Then they say, `Let's do it with this way,' and they sign off on an agreement. There is no way in the world that those individuals know whether or not they are in conformity with the requirements of the act. It seems to me that, provided the arrangements satisfy the needs of the individuals in that workplace, any issue they decide there should be an agreement on should be regarded as pertaining to the employee-employer relationship—in the real sense of the word and not in the strict, literal sense of the interpretation of the act. If this government were genuine about fostering enterprise bargaining and equity and equality in the negotiating process, then it would have sought to amend the act to make it much more flexible with regard to the way those negotiations can be carried out. Flexibility would allow people to genuinely reach agreement on the issues they think are relevant to them in their workplace, rather than there being some structure where others are able to intervene in the process and determine issues according to a precise legal definition of what is in the act.

In that respect, therefore, this legislation will not in my view remove the doubt from the industrial relations environment in the sense of ongoing agreements. The effective way of dealing with the validation of existing agreements would have been as Labor has put forward: to validate all existing agreements that have been entered into good faith up to their expiry date. At least that would have removed the uncertainty right across the board in respect of these agreements. Senator Santoro referred to the promotion of AWAs. Having seen some of the AWAs that have been negotiated over recent years, I would venture to suggest that, if the Employment Advocate were asked to go back and look at the AWAs he has registered, a substantial proportion of them would not meet the test that the High Court applied in the Electrolux decision. There would be matters in those agreements which would be seen to be outside of the employer-employee relationship. No-one has suggested that the Employment Advocate do that and those agreements will probably skate through without being under any challenge.

While I understand and accept that the government is attempting, in a limited way, to address a problem which has been created as a result of the Electrolux case, I think the approach to dealing with it has been inadequate and does not go anywhere near far enough to create the certainty that employers and employer organisations, unions and employees would like, and are entitled to, in this environment. What is more, this approach will in my view create a set of circumstances where there will be potential disbenefits for some employees in respect of the operations of the agreements which they entered into in good faith. I would urge the government to again look at Labor's proposal to validate all of the agreements that are in existence up until their expiry date and to look at creating an environment whereby from that point onwards this issue of uncertainty can be dealt with in a more constructive way. That may well mean the need to embrace changes to the objects of the Workplace Relations Act.