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Monday, 18 June 2007
Page: 71


Senator SIEWERT (5:09 PM) —Work Choices is bad law and it is bad policy. Work Choices has proven to be a disaster for many in the community, with the supposed economic benefits proving to be more spin than reality. One of the most objectionable and detrimental aspects of Work Choices is Australian workplace agreements and their undermining of collective bargaining. I do not think it is necessary to go over all the statistics and data that have so conclusively shown that, since Work Choices became law, AWAs have been used to exploit employees; in particular the most vulnerable in our society—young workers and women.

Of all the data, both official and leaked, that has shown how AWAs have ripped penalty rates, overtime rates, public holiday pay and rest breaks away from employees, I find the wages data the most telling. In a time—as we are so constantly reminded by the government—of unprecedented economic growth, wages for significant sections of the workforce are going backwards in real terms. The research into the wages of women on AWAs tells a sorry story. The gender pay gap is growing significantly for non-managerial women on AWAs and, what is more, these employees are also experiencing a deterioration in their real wage. There really is no question that women are significantly disadvantaged in a system where primacy is given to individual bargaining. These are the employees who need to be protected by a robust and effective safety net, not this flimsy, full-of-holes political stunt. More perniciously, AWAs are used to deny employees the right and, indeed, the ability to get together collectively to bargain with their employer. In fact, AWAs are used not to enable flexibility for employees, as the government suggests, but to disenfranchise employees in their workplaces.

It is remarkable to reflect just how far Australia lags behind countries such as Canada in protecting the fundamental rights of workers. At the same time as we in the Australian parliament are debating the government’s flawed so-called fairness test for AWAs, the Canadian Supreme Court has recognised that the right of employees to collectively bargain is a fundamental human right protected by the Canadian Charter of Rights and Freedoms. The contrast could not be more stark. While other nations around the world protect the fundamental rights of people to bargain collectively, Australia’s laws, in particular AWAs, directly undermine such rights. The Canadian Supreme Court recognised that the right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers. It is exactly these attributes that Work Choices denies to many employees.

There is a clear and fundamental difference in how the different sides of politics view the idea of a safety net. The Greens believe in a strong and effective award safety net for all employees—not in a narrow, gap-filled safety net that lets through more people and conditions than it catches. We are seeing with Work Choices the ‘death by a thousand cuts’ of the award safety net that has been protecting Australian employees for decades. The government would like nothing more than for awards to disappear forever. While this fairness test resuscitates some parts of awards, we have no faith that awards will remain if the government is returned at the next election.

Another aspect of the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007, and indeed of the whole of Work Choices, which goes against the grain of the government rhetoric of ‘a simpler, fairer system’ is the outrageously complicated and time-consuming regulation and bureaucracy this law requires. We have been told that 800 staff will now be working at the Workplace Authority applying this test. On the figures presented to the Senate Employment, Workplace Relations and Education committee hearing into this bill about the number of agreements that need to be considered, we have no faith that the test will be applied in a rigorous and timely manner. This will inevitably leave both employees and employers in an untenable position.

The Australian Greens do not believe this bill should be passed in its current form. The bill does not achieve the objective of providing a fair safety net for employees. While it may be said that the bill provides a stronger safety net, that is only true because the current safety net is so weak. Of the many deficiencies in the bill, the main ones relate to the coverage of the fairness test, the application of the test and the lack of transparency in decision making. There are too many employees who will not have the fairness test applied to their agreements for it to be considered in any way fair. These employees include all those who signed a workplace agreement between 27 March 2006 and 7 May 2007, all those whose full-time equivalent earnings are more than $75,000 and all those whose work is not usually covered by a federal award. The Greens see no justification for these arbitrary exemptions from the fairness test. While we realise it would be a lengthy task to assess all the workplace agreements lodged prior to 7 May 2007, it is unreasonable for the government to acknowledge by introducing this bill that there have been employees worse off under such workplace agreements and yet to provide no remedy at all. AWAs can last up to five years, so someone who signed an AWA on 6 May 2007 could have all their penalty rates, overtime rates, rest breaks and so on removed with no compensation or inadequate compensation. They will remain stuck with what the government acknowledges is an unfair agreement and there is nothing that they can do about it. There is nothing, to my mind, fair about this.

With respect to income exclusion, apart from the arbitrary nature of such a provision, of particular concern is that because the annual threshold amount is applied pro rata to part-time employees, there will be part-time workers who earn significantly less than the prescribed amount but whose agreements will not be subject to the test. Once again, we are seeing workplace laws from this government that disadvantage the already vulnerable. The Greens are also particularly concerned about the potential for many employees who were employed under the state industrial relations system prior to Work Choices and who could now be excluded from the fairness test. The exclusion of these employees comes from the definition of ‘usually covered by an award’, where an ‘award’ is defined specifically as a federal award. As became clear in the Senate inquiry, there are many employees whose work was covered by a state award but where there is no federal award. While the amendments to schedule 8 in the bill are intended to deal with this issue, as the bill is currently drafted, into the future these employees would not have the fairness test applied to subsequent agreements. There will be additional problems in the future for employees previously in the state system where there is no relevant federal award to apply in the test, and the bill does not allow the Workplace Authority Director to consider a state award as a designated award. We understand that the government intends the award review process to circumvent this situation arising; however, we have no faith that this review process will occur in such a time or manner to ensure that employees will not fall through these gaps and become worse off.

We note the government’s intention to move an amendment to ensure that all employees working in traditionally award-covered areas, including under state awards, are subject to the fairness test. We would welcome such amendment but will await the detail to consider if it adequately addresses the problem. With all these holes and gaps for employees to fall through, this is not a safety net but a sieve. The Greens will be moving amendments to the bill so that the fairness test must be applied to each and every workplace agreement lodged.

A second area of concern for the Greens is the operation of the fairness test, particularly in the way the test is limited to only considering a restricted list of protected award conditions. Under this test, a range of award conditions can be traded away without compensation. These conditions include: redundancy pay, long service leave, rostering provisions and other working hour provisions, casual loadings that are more than 20 per cent, any right to request flexible working conditions, and paid maternity leave. These are important conditions which affect an employee’s work and family life and they should be factors in the test if it is to be truly fair. The Greens believe an effective fairness test must consider all award conditions. We are also concerned about the extent of matters the Workplace Authority Director can take into account in deciding whether an agreement test passes the fairness test. In particular, we note the objections of the ACTU to the director being able to take into account the employee’s personal circumstances. We believe that such a provision is discriminatory and should not be considered in the legislation. We are also concerned about the breadth of the exceptional circumstances exemptions open to employers in respect of the industry, location or economic circumstances of the employer. We do not believe such exemptions should be allowed, but if an employer is able to have their economic circumstances taken into account, in all fairness a resulting agreement should be limited to no more than one year or at least be reviewable after one year. That way, if the employer’s business circumstances have changed, employees are not subject to an inferior agreement for any longer than is absolutely necessary.

The application of the test to collective agreements is inequitable. These provisions allow for some employees under the agreement to not be provided with fair compensation for the loss of conditions while others are. The Greens do not believe such inequity should be allowed and we are moving a simple amendment requiring the fairness test to be applied to each and every employee under the agreement to ensure that they will receive fair compensation for loss or modification of award conditions. A number of submissions have raised concerns about defining and assessing fair compensation, and in particular taking into account non-monetary compensation. The Greens share these concerns and believe the bill should provide a clearer definition of fair compensation. The Greens are concerned about the lack of transparency in decisions made by the Workplace Authority Director in applying the fairness test. We believe it would enhance the fairness of the test if provision was made for a person affected by a decision of the director to have the right to request and receive written reasons for the decision. Furthermore, there should be a process for review of the director’s decision. These decisions potentially affect people’s livelihoods, and as such there should be a robust mechanism to ensure that these administrative decisions are taken in accordance with the legislative requirements. The Greens will move amendments to this effect.

The list of deficiencies in this bill is extensive. We will also be moving amendments to strengthen the provisions relating to what happens when an agreement fails the test so that there is no possibility of an employee being returned to an inferior agreement. If you fail the test, what happens after that? We will also be moving amendments to strengthen the provisions for dismissal protection.

The interaction between Work Choices and the Welfare to Work laws are of particular concern to the Greens. We already have the unconscionable situation where people receiving welfare benefits can have these benefits cut off for eight weeks if they refuse a job which requires them to sign an AWA, but now we have the potential for people to be breached and have their benefits cut off for eight weeks if they refuse to sign an unfair AWA. We believe that amendments need to be made to the Social Security Act to ensure that this situation is not a possibility. While the law is unclear on this, it could happen.

I want to make a couple of comments on the amendments proposed by the government to its bill relating to prohibited content and union registration. The government is moving from the regulations into the act the listing of bargaining fees and some other union related matters as prohibited content. These provisions demonstrate a cynical manipulation of legislative process—bargaining fees are already banned under Work Choices, like they were under the previous act.

The Greens are supportive of the amendments relating to the ability of state unions to become federally registered if some members, rather than a majority of members, are in the federal system. The requirement for a majority of a union’s members to be in the federal system before the union could be federally registered meant that a number of public sector unions with majority membership in the state system faced not being able to represent those minority of members in the federal system. With the corporatisation of sections of the Public Service, this was a direct threat to freedom of association. We are glad the federal government is prepared to fix this problem.

The Greens will be moving a series of amendments to make this a true safety net and to make sure that the safety net provides for everybody. We want to really put fairness into this fairness test and we want to do what is really fair for all workers in all circumstances, not a select few under limited circumstances.

This bill not only is not a safety net; it is a sieve. But it also has what I think may be unintended loopholes that need to be fixed—for example, the Welfare to Work provisions, where people could be breached for not signing an unfair AWA. I do not believe that that is the government’s intent—I believe it is a genuine loophole—but I think it needs to be fixed. As I have not seen any amendments to fix this, despite the fact that it was raised in the committee inquiry, the Greens will be moving an amendment, which I hope the government will support, to ensure that people are not breached if they refuse to sign an unfair AWA, because I do not believe that that is the government’s intent. If it is the government’s intent that people could be breached for signing an unfair AWA, I am shocked. But I hope they do recognise that, to be fair, they need to act to fix that loophole and they need to act to fix other loopholes.