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Tuesday, 27 November 2012
Page: 9887


Senator ABETZ (TasmaniaLeader of the Opposition in the Senate) (16:56): The coalition welcomes a number of aspects in the Fair Work Amendment Bill 2012 but also has great reservations about a number of other aspects. To set the scene for the debate that we are having today it is necessary to remind ourselves that there was no regulatory impact statement when the Fair Work Act was implemented. As a result, the government was required to have a review within two years. Finally, on 20 December last year, the Minister for Employment and Workplace Relations, Mr Bill Shorten, announced the review.

The review, colleagues will remember, was a review undertaken by hand-picked panellists whose pedigree was that they were Labor sympathisers. We had the good professor who, after only two months of Work Choices, was able to make definitive statements about it and yet, two years after the Fair Work Act, came up with the lame description that it required 'more time' before we could tell its impact. This is the same professor who railed against the use of the corporations power for coalition workplace relations policy yet has remained strangely silent when it comes to the use of the corporations power for Labor workplace relations legislation. So, a very simple approach: Liberal, bad; Labor, good. Hardly what you would expect from an academic and hardly what you would expect from a person who would provide an independent mind and judgement to these matters of great importance to our nation and of great importance to individual workers right around Australia.

I could go on with other panel members but I will not. What we do know is that the terms of reference under which this cherry-picked, hand-picked panel had to work with were skewed. How do we know that? We know because, after many questions not being answered, my office finally undertook a freedom of information request which showed the documentation and the email trails where the department quite rightly had expressed concern that fundamental issues such as union militancy, red tape and productivity were not part of the terms of reference. Long story short: hand-picked panel, skewed terms of reference. Nevertheless, it provided a report which was, as one might expect, disappointing.

But, nevertheless, there were 53 recommendations, and a majority of those recommendations were recommendations with which the coalition agreed, recommendations where—despite the biased nature of the panel, despite the skewed terms of reference—reality mugged the panel to such an extent that they had to accept a number of recommendations. As a result, there are a number of issues here where the coalition is in full agreement. But I might add that instead of implementing all of the 53 recommendations or seeking to deal with them, Mr Shorten has done a political act in relation to this and has only dealt with 17 out of the 53 recommendations. Let me go through a few of them.

One of them is that the panel recommended that the Fair Work Act be amended to expressly empower Fair Work Australia to strike out an award variation application that is not made in accordance with the Fair Work Act, is frivolous or vexatious or has no reasonable prospects of success. Good, sensible stuff; the coalition fully supports it. I move on to the implementation of recommendations 44 and 45, where the panel recommended that the President of Fair Work Australia give consideration to requiring applicants to provide more information about the circumstances of the dismissal in the initial documentation lodged with Fair Work Australia. That is in relation to unfair dismissals. Similarly in relation to unfair dismissals there is the suggestion that costs orders be able to be made.

I indicate that as a coalition we have been talking about that for about two years and, yes, the ACTU, unable to help itself, had to come out and condemn us. Interestingly enough, the Fair Work Act review panel came to the conclusion that in effect what we as a coalition were saying was right. Small business has suffered, and suffered terribly, under this extreme unfair dismissal regime and it is a credit to the Labor government that they are willing to address these issues at least in part. It is somewhat strange that when the coalition make such recommendations, the ACTU is out there opposing it; when the government finally get mugged by the reality that these things do have to be changed, the ACTU is deafeningly silent because other trade-offs have been made with them.

Allow me to turn to those aspects of the bill where we as a coalition have very real issues and where we will be seeking to move amendments during the committee stage. First of all, this bill also contains matters extraneous to the Fair Work Act review panel's recommendations. A matter that the coalition have long been concerned about is the default superannuation schemes in the modern awards. We believe that they should be opened up for competition so that workers can get the best deal possible. But of course when you have industry super funds that are run by union and employer groups and they are the organisations making representations to Fair Work Australia, guess what? There is always a consent agreement that these superannuation funds should be part of the award, part of the default superannuation mechanism. It has always been the coalition's view, and my personally strong view, that these superannuation funds should not be allowed to be default funds just because two sectional interests happen to agree because they have certain benefits.

Senator Farrell interjecting

Senator ABETZ: Senator Farrell interjects and says, 'I think that they are the best funds.' My view is, very clearly: let them prove that they are the best funds. And if they are, they have nothing to fear from an expert panel examining them and determining whether they are worthy. In fact, that is what the government's own review, conducted by the Productivity Commission, actually recommended. But what do the government do? They do not implement the Productivity Commission's recommendations, because they are hell-bent on protecting the gravy train of certain of the industry super funds from which the trade union movement in particular does exceedingly well. This is not serving the interests of Australian workers, it is not serving the interests of superannuation generally, it is not serving the best interests of our nation as a greater proportion of the population need to rely on their own retirement funds and are no longer able to rely on the pension. As a result, we will be moving amendments, and I will be expanding on that later, to have those schedules removed.

Another aspect of this bill, which is gobsmackingly arrogant, gobsmackingly vain of this Prime Minister, is the government's refusal to accept that the name of Fair Work Australia should be changed. That was the finding of the review panel. It is the considered opinion of the President of Fair Work Australia. It is the considered opinion of the trade union movement. It is the considered opinion of employer groups. It is the considered opinion of the Independent Contractors Association, the Council of Small Business of Australia, the Housing Industry Association. Do you know who else is on the list? The Maritime Union of Australia. So we have this absolute clean sweep across the board, from the MUA right through to employer organisations to the President of Fair Work Australia, and the recommendation of the President of Fair Work Australia itself. And their strong recommendation: delete the name 'Fair Work' from the name 'Fair Work Australia'. Why? Because the brand has been trashed. Why has the brand been trashed? Because of the way Fair Work Australia has conducted the Health Services Union inquiry. I have given speeches about that in the past and will not dwell on it for too long. Further, the brand has been trashed by the appointment of an endless tribe of ex-trade union bosses to sit on the bench of Fair Work Australia. Furthermore, the name 'Fair Work Australia' is Orwellian if ever there was such an example.

That is why every single sensible contributor—and it is not often I will be saying that about the Maritime Union of Australia, might I add—from the Maritime Union of Australia right through all agreed that 'Fair Work' should be deleted from the name. But we have the vanity of this Prime Minister saying, 'Nobody will stand in the way of Fair Work Australia remaining.' If Labor and the Greens want to combine here in this place and retain the trashed brand of 'Fair Work Australia', they can be our guest, but in so doing they will be doing a disservice to the workplace relations system in this country. They know it, the panel knew it, the President of Fair Work Australia knows it, the union movement knows it, the employers know it. Everybody knows it other than the woman that gave it the name—namely, the current Prime Minister, who was then Deputy Prime Minister, Ms Gillard. It is her vanity that stops the name change that would be such an improvement and cultural change that is so vitally important. That is why we will be recommending that the name should be changed to the 'Australian Workplace Relations Commission'.

More important for us is the amendment being moved by the government to the Fair Work Act to create two new vice-presidential positions. Out of the 250 submissions to the Fair Work Act review, did anybody raise this issue? No. Was it recommended by the review panel? No. From where did it come and why is it so urgent? Nobody can explain other than this is a blatant attempt by this government, thinking that it is in its death throes, to try to future-proof Fair Work Australia from any attempt at getting a balanced bench. We know that the new president—and I mean him no disrespect by this—of Fair Work Australia could only have gotten the job, I am sure, because in a previous life he was an assistant secretary of the ACTU. You then have a look at the endless tribe of ex-trade union officials that have been appointed to Fair Work Australia. You then ask yourself the question: why do we need these two extra positions, at a cost to the taxpayer of $1.5 million per annum? That is the estimate from the department. When the government budget is haemorrhaging everywhere, we are creating two new positions to try to leapfrog all the other senior officials in Fair Work Australia.

Is this just the coalition being concerned? No, it is not. No less a body than the Law Council of Australia has come out in condemnation of this proposal, because they see it for what it is: an undermining of this quasi-judicial body by creation of new positions to try to sideline other people who have seniority within Fair Work Australia. Of course, who are these two people with seniority in Fair Work Australia? Former Howard government appointees, Mr Lawler and Mr Graeme Watson—or should I call them vice-presidents Lawler and Watson. The government has put no argument to us as to why this is such an important amendment, such an important proposal, other than to try to ensure that they so stack out Fair Work Australia that no government will be able to correct the balance for a long, long time. It is shameful, it is transparent and it is another indication that Mr Shorten in this role as workplace relations minister does not understand that he has an overriding responsibility to the national interest. He still sees himself as a trade union boss just wearing a different hat and, as a result, he will do that which he believes is necessary to advance the cause of ex-trade union bosses. That is not what provides confidence to the Australian people and to Australian workers and Australian businesses that Fair Work Australia will provide sound, balanced decisions in this difficult and vexed area.

Further, the government needs to explain why this legislation was rushed into the House of Representatives one day and then passed the very next day—forced through. Then we have it moved in the Senate today that the bill be exempted from the cut-off. We had the embarrassment yesterday of the government doing this with another workplace relations bill only to be scrambling around with amendments to try to fix it up. That is why there are these time gaps between legislation moving from the House to the Senate. That is why bills should lay on the table. That is why proper consideration by Senate committees should be allowed. But since the Greens and Labor have got control of this place the Senate committee system has fallen into disrepute.

This important bill was given four witnesses to be heard and was rushed through in one day.

Senator Polley interjecting

Senator ABETZ: We hear Senator Polley's interjection, which is very unwise because we know that, since the Greens-Labor alliance have got control of this place, they have thus far guillotined 150 bills since the last election. When the coalition had control of the Senate, those opposite condemned us because we had guillotined less than one-third of that number in the whole three-year period of the government. They have now gone strangely silent because the Greens-Labor alliance opposite know how they are abusing this chamber and are ensuring that legislation is not being properly considered. So much for the Greens and the country Independents promising a new paradigm of legislative transparency, that the parliament would be made to work as it should. Here we have bills rushed through the House, rushed through the Senate, no proper Senate committee stages and, as a result, bad legislation getting passed.

The coalition's view on this legislation is that there are a lot of good things in it which we support. There are also many bad things in it which we oppose. We will pursue each and every one of our amendments to a division. We will seek to put on record our very important concerns. If at the end of the day it is the Senate's view that the legislation should be unamended—and it is quite clear what its view will be—we will not oppose.