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Thursday, 2 December 2004
Page: 52


Senator HUTCHINS (12:57 PM) —I wish to comment on both the implications and intentions of the Workplace Relations Amendment (Agreement Validation) Bill 2004, as they both reflect, once again, the Howard government's divisive and ill-conceived approach to industrial relations. This bill is the government's response to the decision made by the High Court in the Electrolux case on 2 September this year. The court found that, for a collective agreement or AWA to be valid under the terms of the Workplace Relations Act, that agreement must solely address matters pertaining to the relationship between the employee and the employer. This bill thus validates agreements made before or on 2 September this year by validating only those matters in these agreements pertaining to the employment relationship in line with that finding.

Labor finds this bill limited in two unfortunate ways. First, the bill opens up more legal uncertainty than it resolves, as it allows the possibility that now every aspect of workers' entitlements will be trawled through the courts. Second, the bill also destroys the good faith that workers and enterprise have developed in arbitrarily striking out parts of agreements that have been negotiated in good faith. In short, the government has arrogantly said it knows best.

The history of the Electrolux case demonstrates that the Howard government is once again the odd man out on the issue of workplace relations. Once again, this bill does not go nearly far enough in providing the certainty that Australians seek in their industrial relations system. Prior to the High Court's judgment, the Full Federal Court found that protected action could be taken over matters that may be included in a future certified agreement. The full bench argued that Justice Merkel erred in finding that only matters pertaining, incidental or ancillary to the employment relationship could be the subject of protected action. The full bench found that this would preclude the judgment of the commission on what matters could rightly or wrongly be included in any agreement and as such would deny the commission its appropriate jurisdiction. Since then, the commission has made numerous decisions on what matters pertain to the employment relationship and those that do not. Until the High Court judgment, this decision was working well, with parties conducting agreements in good faith through the conciliation and arbitration process. Many of these agreements contained matters ordinary Australians would identify as part and parcel of the bargain struck nearly 100 years ago between labour and business. What came in originally in most state jurisdictions is the Master and Servant Act—something that I am sure that the coalition would like to go back to.

What the government has now said is that it will not respect the wishes of employees, unions, employers and the jurisdiction of the commission to decide what matters should be allowable matters in certified agreements. Rather, the government has run to the courts with a restrictive definition of the employment relationship and argued that this necessarily invalidates all these agreements conducted in good faith. Far from supporting the commission process, the government has come in and upturned the trust, confidence and relationships developed by parties through the certification process. Far from respecting the wishes of all parties to have a wider view of the employment relationship, the government has effectively manipulated the courts to pursue its radical degrading of the commission's powers, developed through decades of industrial relations in this country. The upshot is that the government's appeal to the High Court was motivated not out of a desire to seek certainty but out of a desire to once again complicate matters.

So let us now examine the implications of this bill for the industrial fabric of the country. The government has whipped up speculation that many agreements may now be invalidated due to the inclusion of matters ostensibly outside the employment relationship. Let us not forget that it was the government's wish to appeal the judgment of the full bench of the Federal Court that has led to this uncertainty in the weeks before Christmas. Let us not forget that it was the then government's fault that many workers are now uncertain over whether their rights are enforceable in the stressful working hours leading up to Christmas. Let us not forget that all the good faith developed between employers and employees may well evaporate in these weeks because the government's meddling has made the provisions of these hard-won agreements legally uncertain. That is why it is important that the parliament offers certainty to Australia where the government will not.

Labor's amendments will sustain the good faith agreements developed over the last few years. They will sustain the understanding that it is best left to the parties to decide in their agreements what constitutes matters in their employment relationship, as developed by the practice of the commission. They will validate those agreements that have been previously certified and will allow the ambit of allowable matters to be decided by parties to the agreement. This has a deliberate advantage over the bill proposed by the government, as this bill defaults on questions of what would be matters directly implied as part of the employment relationship. Indeed, this opens up the fact that almost all aside from the most basic aspects of the employment relationship will be decided on appeal to the courts rather than through the commission process. What we shall then have is protracted disputation through the courts over many of the aspects of agreements that Australian workers have long taken as being part and parcel of the bargain between themselves and their employers. That is why the second aspect of the amendments that we have proposed will clarify the nature of the employment relationship and leave it up to the commission to decide its boundaries.

It is crucial to understand the significance of Labor's proposed amendments to this bill. These amendments will rule out the possibility that every last detail in the numerous certified agreements affected by the Electrolux decision will now be dragged through the courts. The government's amendments provide no such certainty. Labor's amendments will respect the good faith of employers and employees. The government will undermine the trust between workers and enterprise and replace it with uncertainty. Labor's amendments will protect the entitlements of workers to hard-won gains in agreements. The government will allow for those entitlements to be stripped away. As always in matters of industrial relations, the difference between the constructive approach of Labor and the divisive approach of the government is clear for all to see.

One must wonder why the government has led us down this track. Far from simplifying the industrial relations system, the government has now forced the parliament to clean up its legislative mess. The reality is that we do not have to look too hard for the reason why the government has pursued this agenda. It is there in black and white on page 2 of the government's submission to the Senate Employment, Workplace Relations and Education Legislation Committee. It states:

The Government agrees with the High Court's decision. The Government does not consider that it is appropriate for instruments that are made and enforceable under the workplace relations framework to contain matters that are extraneous to the employment relationship.

The fact is that it is exactly the sorts of matters that employees and employers have agreed are part and parcel of the employment relationship that will be put in jeopardy by this bill.

But the agenda of the Howard government runs much deeper than this. The effect of this bill is that it will open up a legal nightmare over what are allowable matters and what are not. The secret agenda of the government is to use this piece of rushed legislation as the velvet glove by which to erode workers' rights in the federal sphere. By stressing this narrow and ill-defined conception of the employment relationship the government will no doubt argue that a number of matters which have been traditionally considered as part of the employment bargain struck through decades in Australia are now `extraneous matters'.

It is ironic that the conservatives are swimming against the tide in the long and proud history of industrial relations in this country. We on this side of the chamber are justifiably proud of the extension of social welfare through the rights of working people. What is more, most Australians agree that issues like sick leave, child care, job security, enterprise based training and dismissal rights are not extraneous matters. It is not an extraneous matter that workers will not be able to secure full-time jobs because management seeks `flexibility' in hiring and firing casuals.

I know senators opposite might have to strain to imagine life as a casual worker, but I encourage them to imagine life for just one moment as one of Australia's 2.4 million working poor. The working poor are those who are classified as in poverty, despite having one adult in the family in employment. They are casually employed, often in low-skill, low-wage service industries. They struggle to upgrade their skills, mainly due to the Howard government's award stripping of enterprise based training entitlements. Often they find themselves at the mercy of the Howard government's failing Job Network, being churned from one employment services provider to another. In fact, the only certainty that many of them face is that, once again, through no fault of their own they will struggle to make ends meet before their next pay day.

If this is the flexibility that the government think Australia needs then they need to think again. This bill is only the thin end of the wedge that this place will see once the veil slips in July next year. The legislative record of the government is there for all to see. At every stage they have attempted to introduce new divisions into our industrial relations system. At every stage they have eroded the rights that were developed by consensus in the commission. Now, in the shadow of the bills lined up before us—including unfair dismissal laws, allowable matters and the noxious `need for employment' clause—their agenda has been exposed for what it was all along by this bill. That agenda will simply erode the rights of workers to seek nothing more than a fair day's pay for a fair day's work, the dignity that comes with job security and the promise of a better future for their children that comes with social mobility of enterprise based training. Whether it is by lowering wages through the flawed logic of the need for employment, making it easier to sack employees without due process or by taking away the ability of workers to better themselves, the agenda remains the same.

That agenda has been revealed in this place today with this unfortunate but necessary bill to clean up the legislative mess. We could never plunge Australia into industrial disputes in the weeks before Christmas, but the government has used this opportunity to cut away the legal basis for the long history of workers' rights in this country. It has decided against the right path of certifying those agreements conducted in good faith by the parties; rather, it will open up new divisions. With these divisions the government will no doubt ram through its agenda to strip away the rights and conditions of workers, and the good faith delivered through enterprise bargaining and the unions. It has swapped consensus for convenience in driving its narrow agenda to determine issues such as sick leave, holiday leave, enterprise based training and job security as extraneous issues. How can we say that the social mobility of workers, now jeopardised by the second highest rate of casualisation in the OECD, is a callous extraneous matter?

In fact, in last week's edition of the Catholic Weekly in Sydney, the front page referred to a speech by the Catholic Bishop of Parramatta, the Right Reverend Kevin Manning, attacking the idea that we need to have a change in the industrial relations system and attacking the fact that there is this rapid growth of casuals in our society. Bishop Manning's speech indicated that he believed—and I think I am correct in saying this—that the only way to prevent this growth of the working poor is to have a strong system to allow for proper regulation of wages and conditions. We see by this bill today that that is being stripped away. As we know too well, on 1 July next year, we will have more and more legislation come before us that will rip away the rights and the dignity of men and women who work for a living in this country. It will be a sad day when that starts to occur. I hope that the men and women who will inevitably lose the security that they once had will remember that at the next election.