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Monday, 17 March 2008
Page: 1007

Senator KIRK (8:04 PM) —The incorporated speech read as follows



I rise today to speak on the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 ... the death-knell of the former Government’s Work Choices legislation.

For too long now, Australian working families have suffered under Work Choices. Stripped of protections for penalty rates, overtime, shift allowance and redundancy entitlements, just to name a few of the benefits taken away by Work Choices, the Australian public have made their choice abundantly clear. In electing a Labor government, they have chosen a government to deliver on its promise to end the assault of Work Choices on working Families.

So, for whom, or should I say, for what, does this bell toll? It tolls loudly for the former Howard Government, that’s a given. It tolls for the end of AWAs, the so called fairness test (which was in fact never fair), the Work Choices fact sheet, the abuse of taxpayer funded advertising campaigns about workplace relations as well as the complicated and dated awards system and, most importantly, for the end of the deep and inherent imbalance in current workplace negotiations.

If ever a new government had a mandate for change, this was it—this government will abolish the damaging legacy of Work Choices and overhaul Australia’s industrial relations system for good.

Today the Rudd Labor Government delivers. Today, we go forward with fairness and flexibility in the workplace and say to the working families of Australia—we are listening to you.

Work Choices and the Opposition

Work Choices was a slippery, sneaky shift in workplace relations by the Howard Government to individualise employment and to stifle third party interventions from trade unions or industrial tribunals—the kinds of organisations that help keep the workplace fair.

The size and complexity of the Work Choices legislation was enormous. In fact, it totalled 762 pages and was recently described by Philip Adams in the Australian as “the longest suicide note in Australian history”.

There is no question that Work Choices also sucked money out of the public purse. It was “sold” to the Australian pubic under the guise of ensuring “freedom, choice and flexibility” in the workplace by using an outrageous multimillion dollar taxpayer funded advertising campaign.

The Howard government’s politically palatable proposal was a farce; it was presented as a scheme that was all about employers and employees sitting down to reach an agreement that suited both their needs where in actual practice it was quite different and manifestly unfair, placing employees in a “take it or leave it” situation with the pay and conditions of the jobs they applied for.

The Coalition has an appalling record when it comes to industrial relations. Its Work Choices reforms were a sneaky shift towards a national system of workplace relations which would ensure that the majority of employers would be exclusively subject to federal rather than state regulation. In Opposition, the Coalition has allowed the hardship on working families to continue with their indecision and dilly-dallying over whether or not they would support this legislation.

Labor’s Promise

Labor promised at the last election to provide a fairer and more flexible industrial relations system. We have consulted with those who will be affected by and have a role in the new workplace relations system and now, with this legislation, we deliver.

Fairer because ...

The first step this legislation takes towards making a fairer system for Australian workers is to abolish AWAs. Under the transitional legislation no new AWAs will be made and existing AWAs will be put out to pasture. No longer will individual agreements that undermine award conditions haunt Australian workers. This government supports working families and this government wants to ensure that employees are caught by the safety net. Therefore, Australian Workplace Agreements will not be a part of Australia’s industrial relations system’s future..

For too long, AWAs have tipped the balance of workplace relations in the wrong direction. We have heard time and time again how working families have been hurt by having to accept employment conditions below the award standard. There was evidence of this in the May 2006 Senate estimates which revealed alarming statistics about workers employed under AWAs:

  • 100% of AWAs cut at least one protected award
  • 64% cut annual leave loading
  • 63% cut penalty rates
  • 52% cut shift work loadings, and
  • 51% cut overtime loadings.

The transitional period will feature the use of Individual Transitional Employment Agreements (ITEAs). These will cater for those already employed under an AWA as at December 2007 who may switch to an ITEA and to new employees or existing employees whose terms and conditions are governed by an AWA.

In creating these transitional individualised agreements this government will ensure that no one is disadvantaged, as against those on a certified agreement or applicable award, and so therefore introduces the no-disadvantage test.

The Howard government’s so called fairness test failed to ensure fairness in the workplace despite its politically palatable name. It failed to actually protect award conditions at all and it also failed to ensure that employees received full compensation for the loss of the limited number of so-called “protected award conditions”. Therefore, it will no longer apply to new individualised or certified agreements and it will be replaced by the no-disadvantage test. The Rudd government supports a safety net for Australian workers and that is what the no-disadvantage test will provide.

The threshold test for the no-disadvantage test requires the industrial instrument, for example an ITEA, to not disadvantage an employee as against an applicable collective agreement or applicable award or standard. This is another of this government’s initiatives to ensure fairness in the workplace.

Collective agreements will continue to operate in the industrial relations system in accordance with the current rules, apart from the fact they will now be subject to the no-disadvantage test against the full applicable award. Further, they may no longer be terminated unilaterally following the expiry date unless there is an application before the Australian Industrial Relations Commission which satisfies the Commission that the termination is not contrary to the public interest.

This government recognises that business and industry will need time to adjust to the changes in employment arrangements and has therefore legislated for the transitional period by introducing these individual agreements. The industrial relations system is scheduled to be in full force by January 2010 and as such ITEAs have a nominal expiry date of 31 December 2009.

The government also recognises that such major workplace reform will impact on the economy. By legislating for a transitional period, rather than introducing a “big bang” change, the government has acted cautiously and responsibly. The transitional phase will soften the economic effects of the industrial reforms.

The transitional legislation will also modernise and simplify the award system, a further measure to ensure a fairer industrial relations system. Penalty rates and overtime will be fiercely guarded under the modernised award system.

There are currently 4,300 awards in operation in Australia. Pursuant to this legislation, upon request of the Minister, the President of the Australian Industrial Relations Commission will have the power to create awards which will:

  • Protect 10 important entitlements including penalty rates and overtime.
  • Provide industry specific detail on the 10 National Employment Standards.
  • Ensure a faire safety net for Australian employees.
  • Ensure minimum award entitlements are relevant to the Australian economy and workplace.
  • Not be overly prescriptive, and
  • Allow for flexible work arrangements for employers and employees who rely on awards as well as provide for an appropriate benchmark for making collective agreements.

I wish to make special mention of the National Employment Standards which will be introduced in accordance with this legislation. The NES will replace the current Australian Fair Pay and Conditions Standard when the new workplace relations system becomes fully operational in 2010. The standards will include minimum entitlements to guarantee basic working conditions, including hours of work, flexible working arrangements, parental leave, annual leave, personal, carers and compassionate leave, as well as long service leave, public holidays and information in the workplace regarding notice of termination, redundancy.

This legislation will now prevent the Australian Fair Pay Commission from conducting wage reviews other than to increase minimum wages which are paid under collective agreements or ITEAs during the transition period. The reason the Australian Fair Pay Commission will perform only this annual review of minimum wages is because any other decisions regarding pay scales and minimum wages has the potential to interfere with the AIRC’s award modernisation process. The AFPC will continue to set the minimum wage until Fair Work Australia is established, when it will then be incorporated into the umbrella body.

This legislation also stands to protect the right of Australians to join together and bargain for fair pay and conditions.

Flexible because ...

Labor has also promised greater flexibility in the workplace; as such, there will be more flexible common law agreements for people earning over $100,000 per annum. This is because the award system will not apply to employees who have salaries which exceed this amount.

There will also be greater flexibility in the award system through a model flexibility clause—but with a strong safety net to ensure award conditions are not stripped away.

There will also be greater flexibility in enterprise agreements.

These are the measures that this government will put in place through this legislation to ensure flexibility in the workplace.

How the Transition will work

The full implementation of Australia’s new industrial system is on track to occur by 2010. In the meantime, the measures I have outlined today will be put in place to ensure a sensible and responsible transition.

Consultation with business, employer groups, the union movement and wider community has been an important aspect of ensuring that we get the transition right.

The Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, has convened two meetings of the National Workplace Relations Consultative Council, a body which encompasses peak employee and employer organisations from a range of industries. There has also been consultation with State and Territory workplace relations ministers.

This legislation was NEVER about ramming reform through the Parliament. It is about giving Australians the industrial reforms they voted for on November 24 and that is why such consultation has taken place.

Many businesses are currently using AWAs which have been entered into in good faith by employers, so to immediately repeal these laws could leave employees with uncertainty and cause unnecessary disruption to business. This is why this government will sensibly phase out the use of AWAs over time.


This government delivers on its promises; we have now commenced lasting workplace reforms which will ensure fairness and flexibility.

There will be no more Work Choices, no more AWAs, no more unfairness, complexity and confusion in the workplace.

I urge Senators to support this legislation.