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Monday, 18 June 2007
Page: 82


Senator McEWEN (5:59 PM) —I rise to speak on the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007. The motivation for this bill is very clear. The Prime Minister is worried about losing his job, and his government is still losing its campaign to win over the Australian people to an industrial system that is inherently unfair. The purpose of the bill—which has yet another of the government’s notoriously Orwellian titles—is to try to trick the people of Australia into believing their government cares about working Australians and their families. However, the lack of any substantial commitment to fairness in this bill clearly shows that the government does not care.

There is, as previous speakers on the Labor side have said, enough in this bill for Labor to grudgingly support it, but it would be vastly improved by the recommendations made by opposition senators in their comments that were included in the report of the Senate Standing Committee on Employment, Workplace Relations and Education, which inquired into this bill. It would also be improved by the Senate agreeing to the amendments moved by Senator Wong in her speech on the second reading, but it is of course highly unlikely that those amendments will get up.

Labor will support the bill because anything that ameliorates the horror of the original Work Choices legislation should be supported. We support the bill but we are sorry to see that the Australian taxpayer has to fork out for yet another massive propaganda splurge by a government that is running away from its Work Choices label and that is covering its tracks with another media advertising spend—a spend that started off at $4.1 million for just one week of advertisements about a bill that had not even been drafted. And who can forget the $55 million-plus spent on advertising the original Work Choice legislation. We should not forget either that Australian taxpayers are still forking out $4,581 per month to store 3.5 million Work Choices booklets that are in storage because no-one wanted them in the first place. Now they are completely useless and will undoubtedly be pulped. What an outrageous waste of taxpayers’ money. We have come to expect nothing less from this arrogant Prime Minister who likes to spend taxpayers’ money on coaches for the Queen and lavish dining tables. He also thinks it okay to use taxpayers’ money and property to subsidise Liberal Party fundraisers.

The government does not like to use the Work Choices brand anymore; we have seen that in this place today. But Labor continues to happily utter the name that dare not be spoken by senators on the opposite side. We continue to mention it in the context that Labor will tear up the Work Choice legislation and replace it with an industrial system that is fair and transparent and is in the best interests of our economy and our nation’s future prosperity. As we know, the people of Australia were not duped by the government’s misleading rhetoric about the virtues of Work Choices originally, and they will not be duped by this new bill either. Their distrust of the government and their suspicions about the motivations for this bill can only be exacerbated by the appalling disregard for parliamentary process that preceded the debate we are having here tonight.

After months of bad polls, on 4 May 2007 the Prime Minister announced that a new so-called fairness test was to be included in the Workplace Relations Act. Agreements struck after 7 May 2007 would be subject to the new arrangements. We are used to this government’s liking for legislation by press release. It is a hallmark of a government led by a worn-out Prime Minister who is desperate to hang on to his job. Never mind that employers and employees who were in the process of entering into agreements from 7 May were wondering, when they heard the announcement, just what laws applied to the agreements they were entering into. Never mind that the legislation had not even been drafted when the announcement was made. A rattled Prime Minister and his bumbling—or I think he called himself ‘bungling’—minister rushed into making an announcement with the sole intention of gaining some political mileage. Then, in an extraordinary manoeuvre, on 10 May the government in the Senate decided on a date for an inquiry into a bill that had not even been drafted. The draft bill eventually appeared some weeks later and a one-day hearing into the bill of the Senate Standing Committee on Employment, Workplace Relations and Education was held in Canberra on 8 June 2007. Interested persons and organisations had only seven days to prepare their submissions to that inquiry. The committee had to report to the Senate less than a week later. It is just another example of the government’s disregard for appropriate parliamentary process.

The committee’s report from that inquiry reinforced the disparity between the government’s rhetoric about its industrial laws and the facts. It is a disparity that has characterised the debate ever since the government seized its Senate majority and rammed through industrial laws that the majority of Australians did not ask for, did not want and did not vote for. The government senators’ report from the inquiry into this bill is littered with words like ‘flexibility’, ‘streamlining’, ‘efficiency’ and ‘simpler’. More flexible, more streamlined, more efficient and simpler for whom, we ask. When you look at the practical implementation of the new test, you would have to say that the answer is: for no-one. What is simpler, more flexible, more efficient and more streamlined about creating the massive bureaucracy that will be spawned by this bill and that will cost the Australian public an additional $370 million? What is simpler and more flexible about having a plethora of regulatory bodies involved in Australia’s workplaces? These include: the Workplace Authority, which used to be known as the Office of the Employment Advocate; the Workplace Ombudsman, who used to be known as the director of Office of Workplace Services; the Office of the Australian Building and Construction Commissioner; the Australian Fair Pay Commission; and the industrial commission. Heaven help employers trying to navigate that minefield. What is simpler, more flexible and more efficient about an employer now having to hand out an additional piece of paper, a piece of government propaganda—the so-called fairness test fact sheet—to employees or risk a fine of $110 if they fail to do so within the prescribed time limit? What kind of burden is that on the small businesses that this government claims to protect? What is simpler and more flexible about an employer so confused that they need to get pre-lodgement advice from a government authority about a workplace agreement so that, when the agreement is lodged, the Workplace Authority can confirm that it meets the fairness test? All of this is because of this government’s longstanding determination to destroy the award system that provided a level playing field for employers and a decent safety net for employees. All of this is because the government knows that its workplace laws are on the nose with the Australian electorate, an electorate that understands the sense and stability of a strong award system underpinning workplace agreement making.

The electorate has not swallowed the government’s $90-plus million worth of propaganda so far and will not be fooled into thinking this bill is anything other than the application of a few changes to make a bad system look better. The Australian people will not be fooled because they have seen enough now to know that the heart of the government’s industrial relations agenda is to drive down wages and conditions through the use of individual contracts that can and will be offered on a take-it or don’t-take-it job basis. The government has this agenda because it is tired, ideologically bereft and has an impoverished view of a world that cannot contemplate any other way forward. A good Australian government would be focused on giving the nation an industrial system that encourages and emphasises genuine productivity improvements, that ensures workplace commitment to skills and training so that we can overcome the skill shortages holding us back and that really helps working families with genuine work-life balance initiatives. But, instead of modern and much-needed laws, this government promotes minimalist wage cutting and divisive individual agreements and lumbers Australian employers with the massive bureaucratic red tape that goes with the negotiation and approval of those agreements. It remains to be seen whether the Australian people will get any value for money out of the $370 million extra the government is going to pump into the multitude of organisations that monitor the 900 pages of the Workplace Relations Act.

The alleged purpose of this bill is to strengthen the safety net underpinning all workplace agreements. Of course, prior to the Work Choices legislation, we had something called the no disadvantage test to provide that benchmark, but the government got rid of that because they did want workers to be disadvantaged. The government took away the no disadvantage test because they wanted to create a world full of workers like Billy from the Work Choices propaganda booklet—vulnerable workers who could be forced to work on an agreement which had no penalty rates, no shift loadings, no leave loading, no compensation for working on public holidays and all the other things that are important to working people who engage in honest toil and have an expectation, rightly so, to be compensated accordingly.

While Labor knows that most employers do the right thing, some do not, and most will do whatever they can within the limits of the law to cut costs, including wages and on-costs, because they have to compete with each other, as Senator Marshall explained. That is what happened when Work Choices AWAs were first made available to employers. We know from the infamous statistics at the 2006 May estimates that, of the first 250 or so Work Choices AWAs, 16 per cent expressly excluded all protected award conditions, 63 per cent excluded penalty rates and 22 per cent did not include any pay rises. After that horror story, the office formerly known as the Office of the Employment Advocate stopped collecting statistics officially. But then we found out in April this year, courtesy of the media, that a sample of more than 5,000 AWAs analysed by the office formerly known as the OEA showed that 45 per cent had removed all protected award conditions and 76 per cent had removed shift loadings.

Realising it had gone a step too far and there are a few too many Billies out there who might damage the Prime Minister’s chance of returning for another round of fundraisers at Kirribilli, the government proposed the amendments contained in this bill—amendments to the Work Choices legislation—which Labor supports because they are better than nothing, but they are still not good enough. They are not good enough because the new fairness test does not apply to all employees. It does not guarantee monetary compensation for traded benefits, it does not apply to all award conditions, there is a lot of subjectivity in the application of the test, and there is no adequate appeal process if employers or employees are aggrieved by a decision of the Workplace Authority.

I would like to spend a few minutes elaborating on a few of those deficiencies. The new test does not apply to workers on existing AWAs, so the 300,000 or so workers on AWAs registered prior to 7 May can still be stuck on agreements that have no wage increases, no penalty rates, no shift and overtime loadings, no rest breaks, no leave loadings, no allowances and no whatever else they may have lost. It could be almost another five years before those workers are offered another agreement that is subject to a fairness test. There is no requirement for the fairness test to include wage increases, and the test will allow employers to require employees to sign agreements that trade off conditions such as penalty rates and overtime for non-monetary compensation. Just what constitutes sufficient or agreed non-monetary compensation remains to be seen, and whether or not the compensatory value is retained over the life of the agreement, which can be for five years, is not subject to review. As well, numerous escape clauses are available for employers who can avoid paying or giving appropriate compensation for loss of award conditions if they can demonstrate alleged difficult economic circumstances or competitive disadvantage because of their location. Just how these special cases are going to be fairly judged also remains to be seen.

In their dissenting comments in the Senate committee report, to which I earlier referred, Labor senators made a number of recommendations that would address some deficiencies in the bill. Included in those recommendations was the abolition of the $75,000 annual income threshold on the basis that all employees should be covered by the fairness test. An important point was made during the committee hearing that, because the $75,000 threshold is applied pro rata to part-time employees, there will be many workers who earn less than the prescribed amount whose agreements will not be subject to the test. As most part-time workers are women, it will be women who are most disadvantaged by this arbitrary and unfair limit. At the very least, Labor says that the income threshold should be indexed; otherwise, over time, more and more employees will fall outside the limits of application of the fairness test. Labor also recommends that all conditions and entitlements of the relevant award or instrument are included in the application of the test. This is the only way that the real value of traded benefits can be properly calculated.

Another recommendation that goes to the matter of transparency and accountability of the process of application of the test is the Labor senators’ proposal to include an appeal process against decisions of the Workplace Authority. We also suggested that the authority be required to provide reasons to the parties to an agreement justifying its decision. When the authority makes a decision, the parties to an agreement should have the opportunity to verify or refute information the authority has relied on to make that decision. This is particularly important because we know that the army of 570-odd new contractors or public servants required to implement the fairness test will undoubtedly—initially at least—have little understanding of the complexities of what constitutes a fair compensation. Anybody who has worked in the industrial system for any period of time would appreciate that that is always a difficult thing to calculate.

Another recommendation of Labor senators is that any agreements formulated under the exceptional circumstances provision be subject to a limited lifespan and include a requirement for a review during the life of the agreement as to whether those exceptional circumstances still apply, and if they do not still apply then the forgone conditions should be reinstated to the workers affected. Otherwise we will see agreements struck under the exceptional circumstances test—a test that in itself is going to be very subjective—that could be in place for up to five years. Labor is also concerned that, where an agreement fails the fairness test, there is potential for the workers party to the failed agreement to revert to an even less generous agreement struck prior to this legislation. Workers caught in the situation should be entitled to the protected conditions that would have applied but for the operation of the earlier, less generous agreement.

While this bill will be passed by the Senate, Labor questions the bona fides of the government, which has only put the legislation into the parliament in an attempt to improve its standing in the polls and in the eyes of the Australian people whom it continues to treat with contempt. As we know, Senator Minchin, the Leader of the Government in the Senate, has made it known that he thought the original Work Choices legislation did not go far enough. The employer bodies that appeared at the Senate inquiry or that provided written submissions were lukewarm in their support for this bill. While they obligingly supported the government it was evident that the view of big business was that they thought the situation that pertained prior to this bill was just fine but they understood the government’s need to address perceptions—and for ‘perceptions’ read ‘adverse public opinion’.

In the unlikely event that the government wins the next election, Labor are concerned on behalf of working Australians that the government will revert to form and dismantle the few, inadequate protections that this bill provides, whereas Labor in government will rectify the current imbalance in Australian workplaces; we will create legislation that makes the always difficult balancing act of work and family life easier; and we will ensure that workers are protected by a real, supportive and strong safety net. Labor will create a system that is overseen by one independent industrial umpire, creating consistency in decision making—a feature that is completely absent in the government’s bill.

In this bill, the government has given a token nod to what most fair-minded Australians saw two years ago, and that is that Work Choices was neither choice nor fair. No amount of expensive taxpayer funded advertising, no amount of repetition of words like ‘flexibility’ and ‘efficiency’ and no amount of prime ministerial trickiness can cover the fact that this government is determined to persist with an industrial system that is inherently unfair.