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Tuesday, 19 June 2007
Page: 15


Senator FORSHAW (1:28 PM) —Here we go again—another piece of amending legislation introduced by this government to correct a problem created by previous legislation. Since this government came to power in 1996 they have been seeking to change the workplace relations system in this country. Once they obtained an absolute majority in the Senate after July 2005, they proceeded to do that—but to do it in a way that destroyed the concept of fairness and equity in the Australian industrial relations system.

I recall the many debates that I and other senators have participated in over the years. There were always two consistent features of the government’s legislation. One of them was that it was bad for workers and their families. The other feature was that they always tried to dress it up with a title that in reality reflected the opposite of what the legislation did. I remember they introduced the ‘More Jobs Better Pay’ legislation and then they introduced a bill dealing with unfair dismissals that was called the ‘Fair Dismissal Bill’. Here we have it again. We have this amending legislation that is entitled the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007. This bill should really be entitled the ‘Workplace Relations Amendment (We Got it Wrong We Lied to You and Told You it Was a Fair Piece of Legislation but Now the Public Has Found Us Out and We Need to Fix This Problem in a Hurry Because We Don’t Want to Lose the Next Federal Election) Bill 2007’. That sums up precisely what this bill is about. It is a last desperate act by the Howard government to try and turn around the public outrage, the public condemnation and the public rejection of Work Choices. The hide of this government and their hypocrisy is that they are now going to spend millions more dollars of taxpayers’ funds in an attempt to persuade the public that this piece of legislation will undo the problems that the previous legislation created, on which they also spent millions of dollars trying to convince the public that it was in fact a fair system. They have no shame, they have no scruples, because they are desperate to try and hang onto the levers of power at all costs.


Senator Polley —At all costs to the taxpayer!


Senator FORSHAW —At all costs to the taxpayer, Senator Polley—thank you for that accurate interjection. The original legislation that this government introduced made dramatic and far-reaching changes to the industrial relations system. But that first round of legislation was under the conciliation and arbitration powers. There was at least a retention of the concept of public interest, of fairness and of a no disadvantage test that had been introduced by the previous Hawke and Keating governments. However, that no disadvantage test, as we know, disappeared with Work Choices. And of course Work Choices was legislation that was based upon the use of the corporations power of the Constitution rather than the industrial relations or arbitration and conciliation powers. The Prime Minister, the minister for industrial relations and the government all assured us that no-one would be worse off—that no worker in this country would ever be worse off under their changes. In fact, they went so far as to say they would be better off. They have constantly used this mantra. They also said that their legislation was simpler, more flexible and would introduce much needed deregulation and a simple process for employers and employees to bargain over their wages and conditions. Mind you, that same legislation that was supposed to be simpler, fairer and more flexible was in fact much longer than the legislation that it replaced.

Here we have today further legislation, the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007, that itself runs to 80-odd pages with a lengthy explanatory memorandum. If it were the case that this was just a problem of perception, a misunderstanding or a loophole in the law that needed fixing, then why would we have this substantial amending bill before the parliament? The truth is that this is a major, major problem within the Work Choices legislation. In fact, it is a problem that cannot be solved by a simple amendment or even a bill containing 83 pages of changes; it can only ultimately be solved by throwing the legislation out and introducing a system that does incorporate fairness and flexibility for Australian workers and Australian employers.

These problems have come to light over the last 12 months or so—the classic cases of what happened at Spotlight, what happened and is still happening with Darrell Lea, what happened to the young workers of the Pow Juice company. They are all examples of where employees were either stripped of their award rights and conditions and placed on AWAs or terminated and re-employed on AWAs at a significantly reduced standard. As Senator Kirk said in her contribution earlier, it was the real purpose of the legislation to encourage that situation to occur, to provide those opportunities to employers and companies to do just that. I think it is to the credit of a lot of employers and companies in this country that they did not do that. But we also know that there were many who have done it and are increasingly being encouraged to do it—that is, to take advantage of legislation that enables them, without any real restriction, to take employees off award rates and conditions and place them on individual AWAs at reduced levels of entitlement. That is public knowledge. And there is a great fear out there in the community, a great concern, that left unchecked this will continue to be the norm.

I have spoken at a number of community forums, where I have heard mums and dads who have said, ‘It may not necessarily have happened in my workplace, but it’s happening in the workplaces of my children in the retail sector, and it’s particularly being used against younger workers or workers with very little if any industrial bargaining power.’ We have seen situations, of course, where employees were terminated one day, supposedly because of operational reasons, and then offered their jobs back the next day at a lesser standard. This government have sat by and only acted when it finally got to a point where they could not do anything but act because of the public outrage and the demonstrated unfairness of this system.

We also had the change to the unfair dismissal laws, where a business with up to 100 employees is not covered any longer and hence is free to terminate without reason or just cause. That change went well beyond what the government’s own proposal originally was, which is that unfair dismissal laws should be exempt for small businesses of up to 20 or 25 employees.

The very fact that this government has had to introduce what it calls a fairness test is in itself an admission that the current system is unfair. We could cut all of the speeches in this parliament back to that one simple proposition—it has overwhelmingly been demonstrated that the current system is unfair, so the government proposes to introduce what it calls a fairness test. We said it from day one; we told you this was the case. We said both in this parliament and publicly that this was unfair, un-Australian legislation, and we were proved right. But, of course, we have been attacked and pilloried from one end of the country to the other and told that we were just scaremongering or exaggerating and all the rest of the opprobrium that was heaped upon us. Well, we were right. Now this desperate Howard government is floundering around in a last-minute attempt to grab the life raft and try to save itself from the Prime Minister’s ideological obsession.

I want to discuss a couple of aspects of the bill. As has been said, we are supporting this bill because any improvement is better than none. As minuscule as it is, any improvement is better than none for this current system, but ultimately the only solution for the public is to throw this government out and elect a Labor government, which will fix the problems. This bill establishes two new statutory offices—a Workplace Authority and a Workplace Ombudsman. It also results in the employment of up to, I think, 300 extra staff or contractors to monitor the changes. That is a substantial change to introduce these two new statutory offices and an extra 300 staff to try and ensure that AWAs are fair. If that does not tell you that there is a major problem with the current legislation, then, frankly, you do not want to be convinced. And, of course, it demonstrates that the previously established machinery—the Employment Advocate and all the other fancy titles that the government has picked—have singularly failed to do their job. Maybe I am being a bit unfair to them. Maybe they were doing their job, but their job was not to find the problems, not to test the AWAs and not to apply fairness to them but to turn a blind eye. It cannot happen any longer, as the government itself acknowledges.

It is too little, too late. The bill may provide some marginal benefit in that it at least recognises that there are fundamental problems in the system, and it may help in some situations. However, the fundamental problems and the inherent unfairness of the Work Choices regime remain. For instance, these changes do not fully protect award conditions. The fairness test is limited to a small range of protected award matters, being those very few conditions of employment that this government legislated should be protected as award matters. These changes do not really do anything about ensuring that workers do not lose other conditions of employment that they are entitled to but that are not listed as protected matters under the legislation.

Furthermore, the changes only apply to employees earning less than $75,000 a year. Obviously, then, not all employees are covered by the amending legislation. There are problems with the definition of what is deemed to be fair compensation and there is no definition of what is meant by the term ‘exceptional circumstances’ when it is considered by the Workplace Authority Director. The process remains secretive and it is not subject to review. The Workplace Authority Director does not have to provide detailed reasons for a decision. So there are many areas, and I have named just a few, that this legislation does not even touch. They are areas where the Work Choices legislation is still manifestly unfair.

I refer to an advertisement that I saw in the newspaper the other day. At first I was shocked. It said: ‘Collective bargaining—making it easier to do business.’ It is an ad run by the Australian government Department of Industry, Tourism and Resources. I thought, ‘My god, the government has actually decided to promote collective bargaining. What a change that is!’ But then I saw that the ad read:

Collective bargaining: making it easier to do business, whatever the size of your business … Collective bargaining enables businesses of all sizes to work together co-operatively. Small businesses can benefit by joining together to negotiate with a larger business, who is their common customer or supplier. Larger businesses can find it more efficient to negotiate directly with a group of small businesses rather than each small business individually.

I thought: ‘My god, this is amazing!’ Then I wondered: ‘If you took out the word “businesses” and used “workers”, would that ad be published? No.’ I quote again:

Recent Australian Government reforms to the collective bargaining processes under the Trade Practices Act have established a new notification process. This will make it simpler, quicker and cheaper for small businesses to engage in collective bargaining.

What sheer hypocrisy! Your government is out there advertising and promoting to small businesses—maybe a range of small business suppliers—the opportunity to collectively bargain with larger businesses. It is okay for them to do it—and I do not object to that; I think it is a good idea, because very often it is the small businesses, the subcontractors, that get screwed by the contractors when it comes to what they are able to charge for their services—but it is apparently not good enough under this government for workers to have the same right. The right to collective bargaining is enshrined in ILO conventions and has been understood and accepted as a fundamental human right for a worker since the beginning of the industrial age. Workers should have the right to collectively bargain, but this government has done everything possible to discourage and take away those rights and to promote the concept that workers should negotiate individually. That is your mantra; that is your ideological position—that workers should be forced to negotiate individually with businesses whether those businesses be small or whether they be BHP. But at the same time you are out there advertising that small businesses have a need to band together to get some strength to negotiate with big business. You are promoting that but you are denying the same right to workers. What other shame and hypocrisy can this government show in that regard? As I said, this legislation is too little, too late, and it is going to be too late for the Howard government whenever the next election is called.