Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 17 March 2008
Page: 986

Senator SIEWERT (5:27 PM) —The Australian Greens have remained steadfastly opposed to all aspects of the changes to Australian workplaces brought in by Work Choices. We opposed the legislation at the time it was rushed through the parliament and we are well aware of the hardship it has caused many people in our community. The Greens believe passionately in a fair and just workplace and in fair and just workplace laws. We believe we need to respect the rights of workers and we are strong supporters of the Your Rights at Work campaign. Work Choices signalled a major shift in industrial relations with the abandonment of our conciliation and arbitration system. While we recognise the need for an industrial relations system to remain responsive to changes in our economy and workforce, we do not believe the changes brought about by Work Choices were necessary or constructive. Work Choices remains profoundly unjust. While the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 goes some of the way towards addressing this injustice, there is still a long way to go.

We passionately believe that we can create a sustainable future where we can provide fair workplaces and sustainable communities and ensure a healthy economy. We believe that all Australians have the right to live their lives in conditions of freedom and dignity, economic security and equal opportunity. We believe our IR system should protect the dignity of the workplace. All Australians—be they people who are cleaners, clerical staff, those working on the factory floor or managers—should expect to be treated with respect, recognised and valued for the work they perform, provided with opportunities for skills enhancement and career progression and protected from harassment. We believe working people have the right to be involved in decisions about their work. We believe free, independent and democratic unions are an essential pillar of a civil society, and we place a value on community and collective action. An overly individualised society can lose sight of the common good and the common need.

Our primary concern with efforts to reform our industrial relations system is to ensure a framework of laws which support and protect the interests of the most vulnerable in our workplaces. The Work Choices changes hit hardest those who are least advantaged in our society—young people, women, migrants, those in low-paid so-called vulnerable work, casual and temporary workers. The Australian Greens therefore support this bill as a first step towards creating a fair industrial relations system after the failed, disastrous experiment of Work Choices.

However, we continue to have reservations about the government approach to industrial relations reform, believing that they do not go far enough. We also believe there are a number of amendments that should be made to this bill to improve the protections of employees. This bill has two long-term impacts: the eventual end—I stress eventual—of statutory individual agreements, and award modernisation. Statutory individual agreements have never been supported by the Australian Greens. Those include pre- and post-Work Choices AWAs. There is incontestable evidence from a number of academic reports, as well as personal stories of those affected, that AWAs have been used to lower wages and lower conditions of employees. The Senate inquiry heard numerous stories, including those of the tragic circumstances associated with the Qantas valet parking debacle. AWAs have been used as a de-unionisation strategy.

In contrast, there has been little evidence of AWAs being used to extend genuine flexibilities to employees. In fact, the DEEWR departmental submission on flexibility and productivity indicated that there is evidence of increased productivity with collective agreements. They also said there was qualitative research showing in particular that a climate of apprehension associated with the elimination of protected award conditions and the secrecy and pressure surrounding AWAs contributed to unproductive workplaces through reduction of trust between employees and employers. So in fact, contrary to supporting and increasing productivity, AWAs have been associated with a decrease in productivity. The national accounts show that productivity decreased by 0.5 per cent over the past year.

Our objection to statutory individual agreements is not merely that they could be used to exploit employees but also because they restrict freedom of association and undermine collective bargaining. Employees cannot exercise genuine choice to collectively bargain when statutory individual agreements exist. Michelle O’Neill from the Textile, Clothing and Footwear Union made this point forcefully in the hearings on this bill. She described workers in her industry being effectively shut out of collective bargaining through the use of AWAs and made a convincing case why the use of individual transitional employment agreements, ITEAs, will continue to create unfairness.

We remain unconvinced in fact about the need for ITEAs and their overly long transition period. We have some concerns about what the government proposes for ITEAs and we will be tabling amendments to address some issues that we have with them. I feel it is important to express the profound disappointment we have heard from many of those workers in vulnerable industries who are stuck with unfair wages and conditions under existing AWAs. Many of them will have to wait five years before they can get the fairness, justice and decency in the workplace that they voted for.

If there was one issue that dominated last year’s election it was Work Choices. Unfortunately, some of the people who voted out Howard and voted out Work Choices hoping to get rid of AWAs, believing that they were getting rid of AWAs, may still be stuck on unfair AWAs for another considerable period of time. We believe this is why there should be an opportunity within the bill for workers who are stuck on an unfair AWA to ask the Workplace Authority Director to assess it against the government’s new fairness test and no disadvantage test. If it fails the new test, they should be able to choose to unilaterally terminate that agreement. That would make it fairer for them in their workplace.

The right to collectively bargain is a fundamental right that is recognised internationally. Collective bargaining is about addressing the underlying imbalance in the bargaining power between employers and employees. Statutory individual agreements shift that balance of power firmly into the hands of the employers and, we believe, have no place in Australia’s industrial relations system. We welcome the government’s policy commitment to introduce a system of collective bargaining that requires employers to engage if employees want to bargain collectively.

One of the key concerns about the changes to industrial relations laws in the last few years has not just been the existence of AWAs and the reduced safety net but the intersection of AWAs with removal of unfair dismissal protections, restrictions of right of entry and restrictions on industrial action. Again I quote Michelle O’Neill on the combined effects of these measures:

What I mean by that is that it is the intersection of these provisions that really has the most dramatic effect on workers in our industry. The provisions have the combined effect of reducing workers’ bargaining power and reducing workers’ capacity to be effectively represented by a union, the removal consequently of choice out of the system for these workers and the resulting loss of rights and conditions as well as, in fact, in many cases, a green light to exploitation.

The impact of the intersection of statutory individual agreements, restrictions on bargaining through issues such as prohibited content rules, restrictions on the right of entry and removal of unfair dismissal protections is not limited, unfortunately, to the textile and clothing industry. To ensure a truly just bargaining system, these matters must be reformed.

The Australian Greens see no reason why the government cannot use this bill to restore unfair dismissal protections for workers. Furthermore, we believe there is a compelling argument for ensuring that unfair dismissal provisions are fixed at the very start of this reform process so that the lack of protection from unfair dismissal does not undermine this reform process and we can truly move forward with fairness. It is the government’s policy to restore unfair dismissal provisions. It can be quickly and easily achieved through a simple amendment, as the Greens will be proposing, yet the Rudd government seems content to leave vulnerable workers in fear for their jobs.

I find it particularly strange that elsewhere the Prime Minister is charging ahead to deliver on his election promises—even the dumb ones like the tax cuts—but on this particular issue, which was one of the main pillars of the Your Rights at Work campaign and the ALP’s election campaign, the government seems to be dragging its feet. We do not believe there is justification for allowing some workers access to unfair dismissal provisions and denying such protection for other workers. It is wrong to pass up this opportunity to fix the situation now. Similarly, if it is the ALP’s policy to remove restrictions on what matters can form part of workplace agreements, why then can they not repeal the prohibited content provisions now? We will be moving amendments on both of these issues, on restoring unfair dismissal protections and repealing the prohibited content rules now.

The return of awards as part of the safety net is very welcome, as they are an essential part of the safety net in Australia. There remains a significant section of the workforce that is award reliant. These workers are mostly women and the low paid. A strong award system is vital to ensuring these workers are treated fairly. There can be no question that awards today need to be updated. Many awards do not reflect contemporary work practices or standards. However, the Australian Greens are concerned that the process outlined in this bill and the government’s Forward with Fairness policy will result in static awards which are hostage to the government of the day and are unable to be effectively varied in response to changes in the nature of the workforce without specific government direction.

We are concerned with the limited number of matters to be considered, with the limited process for variations and with the underlying change in the nature of the award system. The government is accepting in large part the fundamental shift made by the Howard government in abandoning conciliation and arbitration and the changing role of workers and employee representatives in that system. Justice Kirby in his dissenting judgement on the decision on the constitutionality of Work Choices discussed the move from the conciliation and arbitration power to the corporations power. In a comment we agree with, he said:

The applicable grant of power imported a safeguard, restriction or qualification protective of all those involved in collective industrial bargaining: employer and worker alike. It provided an ultimate constitutional guarantee of fairness and reasonableness in the operation of any federal law with respect to industrial disputes, including for the economically weak and vulnerable. It afforded machinery that was specific to the concerns of the parties, relatively decentralised in operation and focused on the public interest in a way that laws with respect to constitutional corporations made in the Federal Parliament need not be. These values profoundly influenced the nature and aspirations of Australian society, deriving as they did from a deep-seated constitutional prescription.

The Greens believe we are losing something very important if we turn away from these ideals. A criticism made of the Work Choices legislation was that it removed the capacity of the Australian Industrial Relations Commission to hear test cases on contemporary community standards in workplaces. These test cases, together with the award system, in the past gave Australian workers conditions such as hours of work provisions; the principle of equal pay for equal work; the regulation of excessive overtime; the introduction of leave such as bereavement and compassionate leave; redundancy provisions; and unfair dismissal provisions.

We are concerned that the new modernised award system is removing the ability of stakeholders in the industrial relations system to bring such matters before an independent tribunal. Our society and our workplaces will not remain static and we need to ensure that there is sufficient ability in the new system to respond to changing circumstances. In light of these concerns, we believe awards must be reviewed regularly and contain appropriate mechanisms to allow the involvement of relevant stakeholders.

The issue of pay equity provides an example of the need for awards to be varied by a broader process. We all know that the average pay rates for women in Australia are well behind the average pay rates for men—and that it has been made worse under the AWA process. All the research conducted in Australia over the last 10 years points to awards playing an important role in addressing gender pay inequity. For example, most states now have pay equity principles which allow awards to be varied to ensure equal pay for equal work for work of equal value. We are concerned that, without the Industrial Relations Commission being required to consider pay equity when modernising awards, the award modernisation process will merely consolidate the pay inequities that already exist in awards. At the very least we urge the government to include an effective pay equity mechanism in the substantive bill.

We also have concerns around the new flexibility clauses to be included in all modern awards as well as collective awards. The devil, of course, is in the detail and we will not see the actual clauses until they are drafted by the AIRC. However, as a matter of principle, it is of concern that employees could essentially bargain away on an individual basis award conditions through these flexibility clauses. While we recognise that it is the government’s intention that no employee be worse off and that these side individual agreements are subject to a no disadvantage test, the experience of AWAs would suggest safeguards will be needed to ensure that particularly vulnerable workers are not exploited.

While we recognise the bill deals primarily with the first phase of modernising awards, we are concerned about how awards remain relevant into the future. We urge the government to ensure a fair, robust and relevant award system without throwing away the strength of the award system under conciliation and arbitration. Our vision for the award system is a comprehensive safety net for workers on an industry or occupational level that is flexible enough to allow for industry-specific conditions but secure enough to provide appropriate protections. Awards must be living documents that can adapt to the changes in community standards. We fear the move away from a tripartite system, with active involvement of employers and employees overseen by an independent tribunal, to a system where the government of the day has a more direct say in the labour standards of Australian workers. We look forward to the end of the worst excesses of Work Choices and working with the government into the future on establishing an industrial relations system that is fair and respects the rights of workers.

The Greens will be tabling a series of amendments to the transition bill, because we believe there are some important issues that were highlighted during the Senate committee hearings. When I heard some members of the coalition talk about some of the evidence we heard at the hearings I thought I might have been at different hearings, because people in general were supportive of the legislation, although there were some important issues that were raised. For example, I was particularly taken by the arguments raised by Professor Andrew Stewart around the possibility of loopholes where people could be dismissed if their ITEA failed the no disadvantage test.

There were also significant issues brought up around prohibited content, which is why we are tabling amendments around the issue. I see no reason at all why a government who says they do not agree with the prohibited content element of the workplace laws as it stands and as it was introduced under Work Choices cannot remove that restriction now so that ITEAs, when they come in, will not be disadvantaged by not being able to deal with those issues. It is also important for Australia to note that individual statutory agreements and AWAs will be with us for some time to come. Those people who have entered into agreements before this legislation comes into being will be stuck on those agreements, which is why we believe that they need to be able to test those agreements against the new conditions and, if they are seen to be unfair, they should be able to be terminated.

We also believe that AWAs that are in place now should expire when their nominal expiry date is reached, rather than continuing. We also believe that it is important that our industrial relations system should still deal with the issues and still support the freedom of association. We are concerned, and we have expressed our concerns on a number of occasions, about issues to do with the right of entry provisions, which the government does not intend addressing in its industrial relations reforms. We believe that should also be addressed, although we will be addressing those issues during the discussions over the substantive bill.

The Greens will be tabling a series of amendments to this transition bill. We think it is a good start in the industrial reform process. We believe that the bill, through the committee process, did receive overall support from the people who attended the hearings—from both unions and employers. I would like to add that I feel that some of the people representing employers were not across the transition bill provisions and were raising issues that in fact were not in the bill and issues that the federal government, much to my concern, has decided will not be dealt with, including the right of entry. The issues of concern that were raised during the hearing in some cases had little to do with the transition bill. It showed a lack of understanding of the government’s intention. I say that with difficulty because I believe the government should be addressing those issues.

The Greens would like to see this legislation go further and that is why we are proposing amendments to address some of the loopholes in it. Specifically, for example, the very strong case was put that we needed to address the issue of outworkers. If the government does not move amendments to deal with outworkers, the Greens will. In general, I believe that there is cross-party support for addressing these issues. They were dealt with in a very rough way when we were addressing Work Choices. Commitments were made on the floor of the Senate about protections for outworkers. We very strongly believe that those commitments now need to be written into the legislation at the earliest possible opportunity, which is why we will be moving amendments to address those issues.