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Monday, 17 March 2008
Page: 1000


Senator FISHER (6:27 PM) —I rise as a member of the Senate committee inquiring into the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, and in that context I rise, with misgivings like my Senate colleague Senator Boyce, to speak about the bill—a bill which is flawed in its policy intent; a bill which is flawed in its drafting; a bill which does not even do what the government has promised it will do. I come to the failed government promises. Does the bill keep the government’s promise to deliver simplicity? No. Does the bill—

Government senators interjecting—


Senator FISHER —My Senate colleagues can laugh, but I do not find this bit amusing.


Senator George Campbell —Explain yourself.


Senator FISHER —I will explain myself. Does the bill keep Labor’s promise to deliver certainty?


Senator Sherry —Yes.


Senator FISHER —No, Senator Sherry. Does the bill keep Labor’s promise to remove the place for individual statutory agreements in Labor’s new system—a foolhardy promise, but nonetheless one that was made? No. Parties can choose for existing Australian workplace agreements and new individual transitional employment arrangements to continue to apply indefinitely beyond their nominal term with no end date. Does the bill leave every Australian worker better off? No; expert witness evidence is to the contrary. The operation of the new no disadvantage test for certified agreements means an individual employee can effectively have their take-home pay reduced, says Professor Andrew Stewart from Adelaide University—and the bill’s award modernisation process cannot be undertaken with nobody being worse off, says Professor Andrew Stewart from Adelaide University.

Does the bill keep Labor’s promise to exempt employees earning more than $100,000 a year from awards by January 2010? No, confirms Professor Andrew Stewart from Adelaide University. So what has the recent and very quick Senate committee inquiry into this bill heard?

Sitting suspended from 6.30 pm to 7.30 pm


Senator FISHER —What has the recent Senate committee inquiry heard about this bill, which is flawed in its policy intent, flawed in its drafting and fails to do what the government promised it would do? Does the bill keep Labor’s promise to deliver simplicity and deliver certainty? Professor Andrew Stewart from Adelaide University says no. As an academic expert, Professor Stewart told the committee in his submission:

The Transition Bill was plainly drafted in a hurry ... many of the new provisions remain unduly complicated and difficult to understand, even for experts.

Does the bill keep Labor’s albeit foolhardy promise to remove the place for individual statutory agreements in Labor’s new system? No. Workplace parties can continue to use existing individual statutory agreements after their nominal term, with no end date. The Department of Education, Employment and Workplace Relations told the committee that Australian workplace agreements and individual transitional employment agreements in this situation could continue to apply in workplaces, subject to the parties exercising their legal rights to terminate them—in other words, if the parties chose to allow them to continue, then they could do so—and in this scenario they could continue to apply well beyond 2012. The bill does not provide an end date for this continued application of individual statutory agreements, so confirmed the department.

The fact that parties may not be able to amend or vary these individual transitional employment agreements or Australian workplace agreements operating beyond their nominal term does not prevent the parties from choosing to continue to apply these agreements in workplaces on an ongoing and indefinite basis. Does the new no-disadvantage test for certified agreements leave all employees better off? No. Professor Andrew Stewart confirmed that the operation of the new no-disadvantage test for certified agreements, worded as it currently is in the bill, means that an individual employee can effectively have their take-home pay reduced.

Does award modernisation under the bill mean that every employee will be better off? No. I am disappointed that Senator George Campbell is not here to confirm his recent realisation of that fact. Indeed, during the Senate committee inquiry, Senator George Campbell realised that the award modernisation process means that some employees who currently have a safety net could, under Labor’s new system, end up without one. Professor Andrew Stewart, again, says in his submission:

... it is highly unlikely that such a balancing exercise as the bill’s award modernisation could ever be undertaken with such precision that nobody was worse off. Any process of standardisation must inevitably result in some levelling up or down of entitlements.

Perhaps this explains some of the reasoning behind why Senator Gavin Marshall was concerned that the government’s department was apparently not answering my questioning on the consistent application of dual award modernisation objectives of not increasing costs for employers and of not disadvantaging employees.


Senator Kemp —I am very disappointed by Senator Marshall.


Senator FISHER —Very good, Senator Kemp. Senator Marshall has realised that these two goals are somewhat contradictory and, in his words, ‘an impossible task’. Does the bill keep Labor’s promise to exempt employees earning more than $100,000 from award coverage? No. Yet Labor promised in its policy implementation plan:

In Labor’s new industrial system, employees earning above $100,000 will be free to agree their own pay and conditions without reference to awards.

It goes on to say:

Labor in Government will legislate to confine the application of Labor’s new award system to employees who earn less than $100,000 per year when the new award system commences on 1 January 2010.

Professor Andrew Stewart confirmed his view that there is nothing in this bill that achieves this objective. How can and when will the government realise its promise to exempt these workers from awards by January 2010, particularly when this is a bill that deals with many things that are proposed to have operation from January 2010?

How and why has all this come about? How and why do we have a bill that is flawed in its policy intent? How and why do we have a bill that is flawed in its drafting and sees the government failing to keep some of its promises? We have a bill for which there has been no economic modelling done. None of the witnesses that appeared before the Senate committee had conducted economic modelling of the impact of the bill and, more particularly, the government’s department has not performed economic modelling of the impact of the bill. The government has not confessed to having done any economic modelling of the impact of the bill.

Back to the department: its submission as to each term of reference is curiously thin, focusing more on the government’s assessment of the past than on the impact of the bill on the future. Where is the robust and empirical assessment of the future under the bill? The tone of the submission suggests that the impacts of the bill will be minor and will not risk major economic indicators, yet economic modelling showing significant positive effects of the bill are conspicuous in their absence. This has not stopped the Deputy Prime Minister from sallying forth in her second reading speech on the bill to promise that it will not jeopardise employment.

But let us look at the Rudd government on economic management. The Prime Minister rushed to implement a pay freeze for members of parliament. ‘There are no modellings of the savings to be realised from that pay freeze,’ the Senate estimates committee was told. Government comments were effectively that we members of parliament should lead by example, as should, they say—particularly the Deputy Prime Minister—CEOs in the private sector and senior management. The ACTU says that corporate high flyers should lead by example as well. So what of senior management in trade union ranks—what of high flyers in trade union ranks? When that question was put to Sharan Burrow under Senate committee questioning, she admitted that, when it comes to wage restraint, she and her colleagues in the upper echelons of the union movement have not even been asked to play their part. What sort of example is that? So, colleagues, there is no economic modelling and no direction to unions for appropriate high flyers in the union movement to join in wage restraint. Where has the Rudd government’s leadership gone? Faced with a choice between showing leadership on inflation or taking on the unions, the Rudd government has backed down in the face of union pressure and shown no leadership at all. It is not a good start.

But let us go back to the time frame of the Senate inquiry into this bill and the impact on the inquiry itself and on witnesses. The inquiry time frame was so short that at least one organisation—the Shop, Distributive and Allied Employees Association—simply chose to reuse much of the submission they provided to the original Work Choices inquiry back in 2005. Let us look at some of the things that happened here with the SDA submission. For example, in 2005, they said, ‘There will be no requirement to compensate the employee for any benefits that are missing.’ In 2008 that became, ‘There was no requirement to compensate the employee for any benefits which were missing.’ In 2005 they said, ‘They are in fact the result of 100 years of continuous painstaking work by trade unions, usually in negotiations with employees seeking decent entitlements for work in a variety of industries.’ In 2008 that became, ‘They were in fact the result of 100 years of continuous painstaking work by trade unions, usually in negotiations with employers in seeking decent entitlements for work in a variety of issues’—indeed in identical terms, it would appear.

The same employees used as examples of why AWAs should not be extended in 2005 had their cases reported again to support the complete removal of AWAs in 2008. Couldn’t the SDA find anyone else in the intervening years? Such was the cut and paste job that the authors forgot to cut from their submission about the bill some of the paragraphs that they had in their submission about Work Choices in 2005. Nonetheless, they bravely corrected the record when they gave evidence in Melbourne, asking for a number of paragraphs to be deleted. They blamed time constraints for the mistake but, ironically, all references to short time frames that appeared in their submission to the 2005 inquiry seemed to go missing from mark 2 in 2008.

Maybe this apparent oversight raises some undercurrents. How could a submission about a government bill which parades as anti Work Choices be on foot for at least a while criticising the government’s bill as if it were Work Choices? How does this come about? There are undercurrents, perhaps, that the union movement sees this bill as too much like Work Choices and is struggling to toe the government line—undercurrents, perhaps, that the union movement will be on the hunt for payback in the next government round with the substantive bill. On the other hand, how many other submissions were in part cut and paste jobs from previous inquiries due to the significant time constraints given for the committee to inquire into this bill? If organisations did not have enough time to properly look at the bill and its implications, then how could the Senate?

I have mentioned Professor Andrew Stewart from Adelaide university a couple of times tonight. Today the Deputy Prime Minister indicated bemusement with coalition references to Professor Stewart. She suggested that, if the Deputy Leader of the Opposition were to ring him about the bill and ask, ‘What did you think of Work Choices and do you think this is better?’ he would say, ‘This is better for Australian working people because’—said the Deputy Prime Minister—’it so clearly is.’ If that be the case, then why won’t the Deputy Prime Minister guarantee that no individual Australian worker will be worse off under the bill? Why doesn’t the Deputy Prime Minister pick up the phone herself? Why doesn’t she pick up the phone to Professor Andrew Stewart and ask him? Why doesn’t she ask him whether the bill delivers a simpler, more certain system? Because she knows he will say that it does not. Why doesn’t she pick up the phone and ask him whether the bill delivers a system which means that individual workers will not have their individual pay packets reduced? Because he will say that the bill means they can. Why doesn’t she pick up the phone and ask Professor Stewart whether the bill means that award modernisation will leave every Australian worker better off? She will not pick up the phone and she will not ask the question, because she knows he will say the bill means it will not and cannot.

In terms of these transitional shortcomings, it is interesting to note that in the majority report the best that government senators can recommend is that problematic issues with this bill be dealt with in the substantive bill, which is to come later and is yet to be developed. Of what point is a transitional bill? Is not a transitional bill supposed to transition you to something else? What is the point of having it if you are not going to make it do the transition to that to which it is intended to transition? Why leave it all for the next step—that is, the substantive bill? Because the government wants to bury its union payback in round 2—that is why. And, the more it can heap into that bill whilst playing the charade of getting rid of individual statutory agreements, the more chance it stands of hiding its union payback next time around.

In the context of a bill which otherwise progressively limits and then ends the rights of parties to make new individual statutory agreements, the ongoing availability to parties who so wish that a mechanism to continue to apply to a stream of individual statutory agreements, subject to a safety net, is critically important. To that end, that is an important measure in the bill and an important measure, in respect of which the government must keep its election promise.