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Tuesday, 19 June 2007
Page: 11

Senator KIRK (1:10 PM) —I rise today to join my colleagues in expressing my concern about the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007, which adds yet another sad chapter to the sorry saga of Work Choices. We have before us today a bill that is a slippery concession by a worried and tired old government. In the same manner as the Deputy Leader of the Opposition, Ms Gillard, in her speech in the other place was struck by a sudden sense of deju vu, so too am I; I am painfully reminded of the comments I made when debating the original Work Choices legislation here in the Senate in November 2005. It was my intention then as it is today to highlight the obvious injustices and inequities that result from this extreme legislation and, in particular, the deceptive nature of this cumbersome amendment.

This bill, like the original Work Choices legislation, is, as I stated in 2005, a stab in the back for Australian workers. Labor’s longstanding opposition to this attack on workplace conditions has not diminished over time. But with this bill we see that the Howard government remains out of touch with the difficulties facing Australian families and that its disregard for Australian workers has only intensified. We are confronted here today by a bill that not only is fundamentally flawed in its operation but also is a clear testament to this government’s disregard for the workers of Australia. It highlights the government’s obvious attempts to manipulate and trick its way into winning the next federal election.

The focus of my remarks here in the Senate in November 2005 was that, under the Work Choices legislation, employees are placed in a take it or leave it situation—a situation where there is no choice or negotiation of workplace conditions, no practical consensus and no respite for disadvantaged workers. There is an inherent and deep imbalance in any workplace negotiation of an Australian workplace agreement. Under Work Choices, there is a lack of protection for the most vulnerable of Australian workers and, most damagingly, there is an incentive for employers to take advantage of these laws and cut the conditions of Australian workers.

That is where we stand under the existing Work Choices regime: there is no protection and no equity for Australian workers. Instead, there is an incentive to create inequity and there is an absence of workplace protections. This is the core of the Work Choices legislation and it has created a backlash in the Australian working community. But it is a backlash that has been ringing in the ears of the advisers and pollsters in the Prime Minister’s office. It is this backlash that has prompted the government to introduce this bill into the parliament. Maybe this is a good development. We might ask, ‘Shouldn’t the government listen to the people of Australia and legislate in accordance with their wants?’ The answer is that obviously it should. However, two problems arise in the current situation.

The first is that it is not as though there has been a sudden outcry from the community about the unfair and unjust nature of these laws. The workers of Australia did not wake up one morning and say, ‘Hold on—I don’t think we like these laws anymore’, when up until then they had welcomed their existence. No, this was not the case. The overwhelming injustice of these laws has been felt by Australian workers for the past 15 months, but it is only now that the Howard government is sitting up and taking notice. I should add that it is taking notice only in an election year and only a handful of months away from election day. Secondly, in my view, the most grievous problem with this reactionary legislation is that it is not a true reflection of what Australian workers are seeking. It is, as I mentioned before, a slippery concession, but it is clearly a concession that the government did not want to make and has not truly made.

Let me focus the Senate’s attention on some of the instances in this bill where the government has made changes but has not altered the fundamental inequity of Work Choices. I will begin first with the title of the legislation—‘Work Choices’. ‘Work Choices’ is now apparently an unspeakable name. Here we see the first of the government’s tricky ploys to confuse and disguise the injustice of this legislation. The Prime Minister himself, when asked in question time on 22 May this year by the Leader of the Opposition, Mr Rudd, whether the official name of the legislation was no longer ‘Work Choices’, responded:

The relevant piece of legislation is called the Workplace Relations Act.

It seems that we have to remind the Prime Minister that the Workplace Relations Act existed before the implementation of Work Choices and that the relevant legislation for this particular unfair system is in fact titled the Workplace Relations Amendment (Work Choices) Act. Through this devious word play, the government is trying to distance itself from the injustices that it knows are associated with its own legislation, formerly known as Work Choices.

Let me return to the particular bill before us today. I would like to reiterate an important point that was made by my colleague Mr Simon Crean in the House of Representatives debate. Mr Crean began his speech by noting that this bill is called the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007 and pointed to the absurdity of the title of this legislation, particularly ‘A Stronger Safety Net’. These words imply that there was a reasonable safety net in place to begin with. The whole purpose of this legislation is to allow employees to have their conditions removed without the protection of a no disadvantage test and without the advantage of having any bargaining power whatsoever. Yet we see the government claiming that all it is doing is filling in some gaps in the legislation to correct some unexpected consequences. The consequences that have flowed from this legislation are not unexpected ones. They are in fact the purpose and the unavoidable impact of this fundamentally unfair legislation.

The so-called fairness test has been promoted by the government as being about ensuring that workers will not receive anything less than fair compensation for the loss of working conditions. Yet, when one closely examines the bill, there is in fact no guarantee that this will always be the case. What is known as the exceptional circumstances clause in proposed section 346M(4) of the bill provides that, where it is deemed that an unfair agreement is necessary to the business, it becomes fair. Proposed section 346M(5) provides an example of a short-term economic crisis and dictates that the stripping of conditions is fair when it is a ‘reasonable strategy’. When can it be reasonable to impose on a worker an unfair agreement? How does the Workplace Authority, which is designed to uphold the fairness of workplace arrangements, determine that fairness means when it is advantageous to the employer? This is where the real attitude of this government to Australian workers and its disregard for them shine through. This bill is about giving the impression of a concession to Australian workers by way of changes to this legislation, but in reality it is no more than a slippery attempt to avoid giving any real relief from these laws to working Australians.

As has been stated many times by the Minister for Employment and Workplace Relations, Mr Hockey, the compensation is paid in lieu of the condition lost, generally as extra take-home pay. This does not protect conditions of workers; it only serves to compensate for their loss. Take for example an employee who wants public holidays off included in their agreement, which is quite a reasonable request. The employee asks their employer or potential employer, ‘May I have public holidays off as part of my AWA?’ The employer, knowing that there may be many times when they want the employee to work public holidays, could well respond, ‘No. We do not have public holidays off here. Do you want the job or not?’ An employee in that situation knows that public holidays are a protected condition, but they also know that if their salary is slightly adjusted with ‘fair’ compensation paid to them then they cannot argue with the employer. They may want public holidays off to spend time with family instead of receiving the small extra amount of money that might be paid to them as compensation, but this employee is in a situation where they will not get the public holidays off because of the inequitable position they find themselves in where the employer is able to offer what is described as fair compensation in lieu of the time off for public holidays. This simple example highlights the slippery nature of the government’s concession that this bill represents. Conditions will continue to be stripped and workers will continue to find themselves in a ‘take it or leave it’ situation. There is no real change to the inequity of Work Choices as a consequence of this bill.

I will now discuss in more detail the operation of the so-called fairness test that is a central feature of this bill. How does the newly established and financially pumped Workplace Authority maintain Australian workplaces as fair and equitable? Looking at this bill, it becomes difficult to see how the government expects the Workplace Authority to remain consistently fair in its operation. Section 346M of the bill outlines the considerations that the Workplace Authority may—and I stress ‘may’—take into account. First is the monetary and non-monetary compensation that the employee has received in lieu of the protected award condition; and second is the personal circumstances of an employee, particularly family responsibilities. The authority may inform itself in any way it considers appropriate. When these provisions are examined, we see that they become very murky rather quickly when put under the spotlight. The definition of ‘non-monetary compensation’ is something:

(a) for which there is a money value equivalent or to which a money value can reasonably be assigned; and

(b) that confers a benefit or advantage on the employee which is of significant value to the employee.

You do not have to think for very long to realise that this definition covers just about anything under the sun. How is the Workplace Authority expected to attach value to every possible thing that may be put forward by the employer as fair compensation? By this definition, the compensation does not even have to be provided for directly by the employer. In fact, if one stretches the bow to its greatest extent, it could even be office space with a good view paid for at a high price in Sydney, for example, and so therefore easily connected with a monetary value and as conferring a benefit or advantage on the employee. I am certain that a nice view is of some value to some people—and I am sure that former Senator Vanstone in her new residence in Rome will have a very nice view which she will regard as being of significant value—but should these sorts of things be considered as bargaining chips to be weighed against basic workplace terms and conditions? In my view they should not. They are too vague and too operationally difficult for the Workplace Authority to be expected to consider and to assess.

However, it does not stop at this. We also see the real possibility that personal circumstances will be paraded around in order to determine whether the stripping of a certain condition is fair. There are some disturbing consequences of this practice. Firstly, the information is provided by the employer and not the employee—so there exists an immediate conflict of interest. Secondly, is it fairer, for example, that a mother with two children has her vacation time rate more highly than a mother with one child? How does the Workplace Authority, this bureaucratic engine, make these determinations? There are serious concerns that need to be addressed in the creation of a body with these kinds of discretionary powers. Many of my colleagues have described the Workplace Authority as a secretive organisation. I would like to add my own description of it: a black box into which one places a personal question, and then, by necessity, it spits out an impersonal response.

A similarly disturbing problem with this new regime was highlighted in the Senate Standing Committee on Employment, Workplace Relations and Education’s report on this bill. In light of the length of AWAs now being five years, it is unrealistic to assume that personal circumstances, such as that of one’s family, will remain the same over such a long period. The example given in a submission to the committee illustrated this well. An employee has their child care paid in lieu of a removed condition; however, the child over a period of five years grows up and enters school. As a consequence, the child requires less or even no child care at all. The relevant AWA remains in effect, unchanged, without the condition that was removed for the remainder of the five year period. This example highlights again the inequity that is inherent in a bureaucratic body that makes judgement calls on personal circumstances, on a one-off basis, and without sufficient information. It is a testament to the reactionary nature of this bill and the ways that Australian workers will still lose out under this Work Choices regime.

I will conclude where I began by expressing once again my feeling of deja vu. I was disturbed by this legislation in its first incarnation and I am disturbed by its amendment as contained in this bill. At the time that Work Choices first appeared, many found it difficult to believe that such a fundamentally unfair law could have been introduced by this government. Personally, I thought that the government would stand by its legislation, especially considering that the bill reflects the very essence of the government’s insensitive workplace ideology. But, as we have seen, this is a government that is willing to even undermine its own core philosophies for short-term electoral gains. The Australian people will not be fooled by this deceptive semi-back-step from the extremism that has characterised Work Choices. Labor is optimistic about the future of this country. We do not define Australia by its past but look to how it may define itself in the future. Because of this optimism we will support this bill on the chance that it may help just one worker or their family, but we condemn the core of the now illusionary Work Choices and the government who created it.