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National Press Club -

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(generated from captions) This program is captioned live.

At the National Press Club today,

Professor Ron McCallum, professor

industrial law at the University of Professor Ron McCallum, professor in

Sydney, the first full

in industrial law at any Australian Sydney, the first full professorship

university. He is also the first

totally blind person to attain a

full professorship in any field at

any Australian university. His

Back: The Howard Government's speech today is titled 'No Turning

Employment Laws in Operation'.

Professor Ron McCallum with today's

National Press Club Address.

(Bell gongs) Ladies and gentlemen,

welcome to the National Press Club

today and to today's National

Australia Bank address. It is a

great plsh sure to welcome

Ron McCallum, one of Australia's great plsh sure to welcome Professor

most respected experts in the field

of industrial law and there could

hardly be a more appropriate week

for him to appear here. Our usual

practice with a big issue like this

has been to organise a joint event,

a debate, if you like, between the

proponents and the main opponent on

this thing which would have been in

this case the Government or the

trade union movement. Trade June

beyond movement and the Opposition

were very willing. The Government

was not. We decided last week that

after weeks of trying that there

obviously nobody on the Government after weeks of trying that there was

side to appear on behalf of their

proposals, so we decided to turn

away from the politicians to a

genuine expert and we are very glad

Ron is here. We don't like to see

that sort of proposal to be vetoed

in support of their own case. It

a very good idea, anyway. I mean, in support of their own case. It is

Ron McCallum is Dean of law and he

is also the Blake Dawe dron Lawson

and he has been involved in

industrial law in the United States and he has been involved in teaching

and Canada. He has been very much

involved in the development of that

law in Queensland, New South Wales

and Victoria.

and Victoria, as well as the

influence from teaching, and as was and Victoria, as well as the general

mentiond in the ABC's introduction,

the fact that he has been without

sight almost from birth has given

him a phenomenal memory capability.

This Act which runs to some 700-odd

pages is written as a series of

amendments to the principal Act and

he knows the principal Act. Knows

it by memory like your favourite

song or poe em. LAUGHTER And that

has made it much easier for him

many practitioners to get around has made it much easier for him than

total impact of it and as a result many practitioners to get around the

think he is well ahead in total impact of it and as a result I

understanding of what it means and

how it will operate. Please

Professor Ron McCallum. APPLAUSE how it will operate. Please welcome

Thank you very much, Mr Randall. Good afternoon, ladies and

gentlemen. It is indeed a great

honour to have been asked to

this national forum which is being honour to have been asked to address

broadcast on ABC television as I

speak. I'm particularly on Noured

as an Australian disabled person.

It is not often that we disabled

people are given such a prominent

and exotic platform, and on behalf

of my disabled sisters and brothers,

I'm pleased to be here and I hope

disabled family, I don't let you

down. LAUGHTER Let's clear the

decks. Mr Randall said it was

easier for me to read the work

choices Bill. Well, I have a good

memory because I was trained that

way. I read the Bill by

it onto my computer and listening way. I read the Bill by downloading

it in synthetic speech. Now, it's it onto my computer and listening to

very hard to skim with synthetic

speech, so you just have to go

reading the lot! LAUGHTER And,

ladies and gentlemen, it is the

extraordinary bill I have read and ladies and gentlemen, it is the most

know other come pabl -- comparable

country has even suggested putting

in place this type of regime. Of

comparable country, I mean the in place this type of regime. Of by

United States , Canada, Britain,

Europe, Japan, et cetera. I should

also, in clearing the decks, make

clear that I have been and still am also, in clearing the decks, make it

a combatant in this process. I

signed a letter with a number of

academics in the early days. I

wrked for State Labor Party academics in the early days. I have

governments in Queensland, Victoria

and New South Wales. I don't

apologise for that, but I simply

it upfront and people may want to apologise for that, but I simply put

take that on board as my

perspective, but people should be

aware that that's my approach. Why

did I say in my title, "No turning

back"? Well, ladies and gentlemen,

there is no turning back. The work

work choices Bill -- the Work

Choices Bill, as I will call it -

has a longer title, but that will Choices Bill, as I will call it - it

- pass through the House of has a longer title, but that will do

representatives last Thursday and I

have no doubt will pass through the

Senate when it next sits. I don't

expect anyone on the National Party

or Liberal Party side to cross the

floor and only amendments that the

Government wants, I would think,

will be put through, and there will

be amendments. I will come to that.

Might I also say that we're going

to be living with these laws for

some time. Even if there is a High

Court challenge - and I'm told by

State premiers that there will be -

given the workings of the High

Court, I don't think there would be

a decision handed down on this

legislation at the earliest until

the end of 2006 or possibly in

2007. And so we will all be in a the end of 2006 or possibly in early

constitutional limbo till then.

With all respects to those who hold

other views, in my view there is no

way the High Court would grant an

injunction to put a stay on a

validly passed law by the

of Australia, and would the States validly passed law by the Parliament

want to go surety for the damages

that might result if the

was held valid? Like all pieces of that might result if the legislation

legislation, one will have to wait

for the pronouncements of the High

Court. Let me say also that in

relation to the Opposition, Mr

Beazley has said and his party has

said that they will repeal it. I

think his words were "put it in the

bin". Well, that may well be a

commendable approach, but in the

world of realpolitc, I think the

Labor Party has to go much further

than this. After all, this bill

Industrial Relations Commission, practically guts the Australian

my summisation on that is that no Industrial Relations Commission, and

only the limited amount of work

available. When institutions are

destroyed or gutted or narrowed,

it's very hard to revive them. And

if the Labor Party was to win the

Treasury benches in 2007, even the

most optimistic person would say

they would win the Senate. The

optimist might say 2010. I would

like to remind you all, if you need

reminding, that for a government to

hold both houses of parliament is a

rarity. It last happened after the

dismissal between 1975 and 1980,

I think after this term, it won't dismissal between 1975 and 1980, and

happen for quite a long time. So

what I'm going to do in this half

hour available to me is first of what I'm going to do in this half an

hour available to me is first of all talk about what amendments might be

put by the Government in the Senate,

then try and unpack the bill as I

see it, then I will look at the

constitution Alt of the bill and

what I call the corporatisation of

Australian labour law, and then I

want to turn to examining what we

ought to do in the future to clean

up the mess. What should Labor

lawyers and oppositions and

interested people be thinking about

how to rework our laws after people

have suffered this bill? What is

have suffered this bill? What is the light ahead? The bill have suffered this bill? What is the light ahead? The bill is very

complex. In fact, unnecessarily so.

It is an extraordinary

It is an extraordinary reregulation of the workforce. And, in fact, in

relation to collective bargaining,

it dictates almost everything you

have to do. It reminds me of when

have to do. It reminds me of when I used to go and have tea with my

used to go and have tea with my aunt when I was 10 and she would say at

the end, "gentlemen, wash the

dishes." Now, I was the only guy

there. I would wash each cup and

she would stand behind me and

explain to me about each cup.

That's a bit like the legislation.

It's so complex, that it tells

people every step of the way in collective bargaining and every

collective bargaining and every step on other ways, so Parliament is not

only the maker of the laws, but

only the maker of the laws, but also the ultimate interpreter of the

laws. I have never seen such an

extraordinary bill. There were

important issues that were left out.

Employers can be fined $33,000 for

putting in a prohibited provision

into a collective agreement, and

unions can be fined $33,000 for

unions can be fined $33,000 for even suggesting it. A fine upon a

suggestion! However, the bill

doesn't tell us what those

prohibited matters are. It says

they will be made in the

regulations, and even employers, as

I understand it have said, "Look,

hang on, if we're going to be fined,

let's have it in the bill." You

let's have it in the bill." You have to go back to the Work Choices

document in October this year to

find out what they might be. You

are not allowed to put into

collective agreements payment of a

fine and you're not even allowed to

suggest it, so I'm not even

impliedly suggesting it here

LAUGHTER You're not allowed to put

in a provision about unfair

dismissal, on contracts out or

you're not even allowed to put in a

provision giving people time off

provision giving people time off for a trade union leave or even a trade

union meeting. That is one area

where I think we will see an

amendment. Another area relates to

the minima. You know there is 28

hours minimum a week, ordinary

hours, averaged over a year.

hours, averaged over a year. Anyone who knows anything in the area of

averaging knows that that is very

complex. For example, under the mi,

complex. For example, under the minima as it now stands, an

minima as it now stands, an employer could allow an employee to work 26

hours a week for the first six

months and 52 hours a week over the

next six months without overtime or

penalty rates. I really hi the

Government will have to make an

amendment there. Even though we

will see some speeches from the National

will see some speeches from the National Party politicians, the law

won't be changed. How can I unpack

the bill? Let me unpack it the way

the bill? Let me unpack it the way I see it. First of all, you've got

see it. First of all, you've got to realise it is a bill for a labour

law for corporations. In many ways

you might want to Col loek qily

you might want to Col loek qily call it a labour law for the top end of

town. Leaving aside the

territories, the new Work Choices

laws only applies to employers who

are constitutional corporations.

Now, this has two consequences.

Well, let me say first of all, if

you not a corporation or in

Victoria, the federal laws don't

operate and you get pushed to the

states, and if you are a

states, and if you are a corporation operating under the state system,

you get pulled out of the state to

the federal system. You better be

clear whether or not you are a

constitutional corporation,er you

might find you're working under the

wrong process. The conciliation

wrong process. The conciliation and arbitration power now allows quite

arbitration power now allows quite a number of people to be in the

federal system. It doesn't want to

use that power because it mentions

naughty words like industrial

dispute, conciliation and

arbitration and having wages and

conditions determined by an

independent umpire by a binding

arbitration. By not using that

power, it means that people who are

under federal agreements at the

moment who are not corporations and

particularly have in mind awards

like the pastoralists award if you

are a pastoralist not in the

territories, you find you are

territories, you find you are pushed back to the state systems. You

back to the state systems. You have five years to think about either

incorporates yourself or going back

to a state system. You can't vary

it or alter it and you can't make a

new one. So either incorporate and

go federal or you take the plunge

and go into the State system. If

you are an incorporated employer in

the State system, the Work Choices

laws say, "We apply to the

ex-claution of all the state laws

ex-claution of all the state laws to all incorporated employers." So if

you're incorporated and you're

working under a New South Wales

agreement, you're pushed into the

federal system and its said in the

transitional provisions that the

state agreements sort of become

transitional agreements except if

those state agreements have any

naughty provisions in them like

naughty provisions in them like time off for trade union training or

unfair dismissal - they're

automatically excised. So, on the

day or days on which this Act comes

into proclamation we see a massive

shift. It is a bit like the line

between India and Pakistan with

Hindus moving one way and Muslims

moving the other. This just adds

moving the other. This just adds to the complexity. Now, what's the

strategy of the Federal Government?

Well, the strategy of the Federal

Government is that sooner or later,

perhaps in the next five years, one

or more State dominos might fall

or more State dominos might fall and the states will refer their powers

to the Federal Government like

Victoria did and that will be the

end to the problems. One of the

problems with that approach is, I

think that one of the reasons why

some faltering - and they are

faultering, I think - state Labor

governments might survive the next

election is because of the fear of

the people of this industrial

relations bill hoisted upon them.

So we're going to be in this

So we're going to be in this strange transitional period for quite some

time, so you have to think of it as

a law for incorporations -- for

corporations, a law for the top end

of town and for the little person,

you get shoved one way or the other.

Perhaps two areas of the bill are

worth looking at. First might be

minimum standards and the second

collective and individual

bargaining. I think the minimum

standards are pretty well-known.

There is going to be a minimum wage

and that is going to be eventually

Saturday by the Fair Pay Commission

which I suspect will have a

neo-classical economic tilt. While

the current minimum wage will not

the current minimum wage will not be lowered, this new wage-setting body

is unlikely to increase the minimum

wage the way it has been increased

in the past, and we are likely to

see over the next three or four

years a much lower minimum wage,

relatively speaking. I think that

will create a greater salary gap

between richer and poorer workers,

and will have some social disco

heetion in our country. 38 hours a

week averaged over a year - well,

I've spoken to you about that.

I've spoken to you about that. That needs fixing up. The annual leave

needs fixing up. The annual leave - well, we had this curious process

where an employee can request in

writing to cash out two weeks of

writing to cash out two weeks of the annual leave, as though an employee

will have a huge amount of choice

will have a huge amount of choice in reality when you come in and you're

told we all cash out two weeks

annual leave here. Sick leave - pretty

pretty reasonable. Unpaid

pretty reasonable. Unpaid maternity leave - well, that's fine, but this

country cannot dodge forever unpaid

maternity leave. I was

maternity leave. I was disappointed that wasn't put in this bill.

that wasn't put in this bill. There is not a problem with that minima

is not a problem with that minima as such. The problem is once you sign

an agreement, either and individual

or collective agreement and the

collective greenlt or the

collective greenlt or the individual agreement say the awards shall no

longer apply - you've got to

longer apply - you've got to specify various clauses, but there are

plenty of lawyers who, for a fee,

will show you how to do it. Even I

know how to do it. I'm not going

know how to do it. I'm not going to charge a fee or do it. There are

plenty of lawyers who do it. That

means that they are the only minima.

It means, for example, that if an

employer don't want to pay you

penalty rates you don't get them,

penalty rates you don't get them, or overtime work, depending on the

averaging. It also means that an

employer doesn't need to pay Dan

employer doesn't need to pay re-Dunn Dancy pay. Of of course, many

employers will and many will have

employers will and many will have to offer those benefits, but not all

will. This isn't a case of good

will. This isn't a case of good and bad employers. It is a case of

letting loose market forces. In

some industries, particularly

hospitality, couriering, for those

couriers who are employees, what we

will see is a race to the bottom.

Even if you're a good employer, if

your competitors are not giving

these benefits as part of their

labour packages and are able to

produce a cheaper product or

produce a cheaper product or cheaper labour cost, to stay in business

labour cost, to stay in business you may well have to follow suit, and

that's the real problem. I think

there is a real problem in this

minima that we are giving away

significant minimum rites that we

significant minimum rites that we as a nation have chaer rished for many

years. The argument of the

Government is that we must increase

productivity and we should be more

like the United States. Some

like the United States. Some people say we should be more like China,

but I don't think the Government

really thinks that. There is no

really thinks that. There is no way we could drop our wages to that

level. I have spent a lot of time

in the United States. I don't want

to become like the United States.

to become like the United States. I don't want to see the working poor

in this nation. Let me turn to

collective and individual

collective and individual bargaining which is quite extraordinary.

which is quite extraordinary. There is the capacity to make Australian workplace agreement

workplace agreements - fair enough.

And there the minima apply. There

is also the capacity to make

is also the capacity to make various forms of collective agreement, and

the one I love best is the green fields employer agreement.

Can you marry in the abstract? I

think you have to marry someone

else, don't you? There is all sorts of argument

of arguments whether marriage means

between the same sexes or different

sexes, but I will leave that aside.

But it takes two people to marry.

Under the Workplace Relations Act

which its tilt on language, it

which its tilt on language, it takes one person to agree. Under this

process, the employer who is going

to set up a new business may agree

with itself - well, it is a

corporation - on what the wages and

terms of terms and conditions of

employment will be and they will be

lodged with the employment advocate

and they will be told that's a

and they will be told that's a green fields agreement and the employee

who works in that new business will

have to abide by that agreement,

have to abide by that agreement, but they won't be allowed to bargain

they won't be allowed to bargain for a new agreement or to take

industrial action until a year is

lapsed. Can I say to you that one

is to be challenged back in the

courts and if I were back in

practice I would be advising

practice I would be advising clients not to go down that track. You

would have to argue that what you

have lodged it an agreement. My

understanding of the word agreement

in law is an agreement between

parties, not an agreement between

one. I think Lewis Carol said it

elegantly through the looking glass,

didn't he? When I use a word, said

humty dumbty, it means what I

humty dumbty, it means what I choose it to mean, neither more nor less.

But, said Alice, "how can you make

words mean so many different things?

words mean so many different things?" The question is, said

things?" The question is, said Humty Dumpty, "Who is to be master?

Dumpty, "Who is to be master? That's all." Parliament is master in our

worst Smith nation. The rules on

collective bargaining are tilted

very much against trade unions.

First and foremost there is no

mechanism in this bill to allow

employees at a workplace, a

employees at a workplace, a majority of employees to insist that they be

dealt with collectively. This

dealt with collectively. This fault line goes way back in our laws to

the Keating era when the Keating

Government never fixed up this

problem and never understood the

protections that are in place in

United States labour law. In the

United States, and in Canada, if a

majority of employees at a

wish to be dealt with collective majority of employees at a workplace wish to be dealt with collectively

by a trade union, they are

by a trade union, they are certified and the employer must bargain

collectively, cannot offer

collectively, cannot offer increases or decreases during the period of

collective bargaining, and is is

enjoying bargaining good faith and

secure collective agreement. In

secure collective agreement. In the United Kingdom in the recent Tony

Blair laws, trade unions also may

become recognised for the purposes

of collective bargaining if they

of collective bargaining if they can show majority or strong support in

show majority or strong support in a workplace. There is a central

process with the arbitration

committee. In New Zealand, if

workers want to be dealt with

collectively, the employer must

collectively, the employer must deal with those workers, but only those

workers who wish to be dealt with

collectively. That is in line with the

collectively. That is in line with the fundamentalal rights and

freedoms at work to which the IMF

and Washington have signed up, but

our legislation elevates individual

bargaining above collective

bargaining,er and that's one of the

matters that I think needs to be

fixed. If a trade union wishes to

make a collective agreement, it

make a collective agreement, it must have more - or one member in the

workplace put in a notice to

bargain. But the capacity of the

trade union to take industrial

action is so limited that it can

turn collective bargaining into

collective begging. First of all,

you need to hold a secret ballot

before you can decide to take

industrial action. I have nothing

against secret ballots per se - I

first wrote about them in 1976 -

first wrote about them in 1976 - but here the legislation is so complex.

You have to read section 1 09, plus

section 1 09 A and you go on to

section 1 09 ZR. Contrast that

section 1 09 ZR. Contrast that with an employer deciding that employees

agree with a non-union collective

agreement where a ballot may not be

necessary. Once the ballot has

necessary. Once the ballot has been taken, if it is approved for strike

action, then the employer has to be

notified. By this time the

notified. By this time the employer has it all telegraphed that strike

action will take place. There will

be the possibility of the

be the possibility of the commission adopting cooling-off periods during

the strike which will stop the

strike and make it unlawful, but

more interestingly, the Minister

more interestingly, the Minister for workplace relations can suspend a

bargaining period and end the

industrial action under a series of

criteria. And those criteria don't

even have to relate to essential

services legislation. So to me,

it's quite surprising. I know of

it's quite surprising. I know of no other area where that sort of

process has happened. I'm going to

have to speed up. The bill and

constitutionalty. The bill relies

constitutionalty. The bill relies o upon the corporations power.

upon the corporations power. That's the power to make laws with trading

and financial foreign corporations,

et cetera. It's a peculiar power.

Most of the powers that the Federal

Government has to make legislation

are poposive in nature. They are

powers where the Government may

powers where the Government may make laws for the turps of trade and

commerce, for the purposes of

taxation, for the purposes of

marriage, et cetera. But the

corporations power is an objective

power. It is the power to make

power. It is the power to make laws with respect to corporations which

are legal persons. The power won't

allow the Government to create

corporations per se, but it can

corporations per se, but it can make laws about them. And the courts

have held that these laws can

have held that these laws can either be about corporations or about

people who engage in conduct with

corporations. That's on - on that

basis, the High Court and the

Federal Court have upheld the use

Federal Court have upheld the use of the corporations power under the

Workplace Relations Act. But isn't

it kind of strange that we use a

power for corporations to deal with

working people and we don't use a

labour relations power to deal with

labour relations? Let me give you a

frivolous example, but I do so to

make a point. Supposing in the

constitution we added a new power

constitution we added a new power to section 51 and we call td the

women's power. It is the power to

make laws with respect to women.

Perhaps, ladies, it's needed.

Perhaps, ladies, it's needed. Could we use the women's power to enable

women and men to marry and divorce

one another? Yes! The power would

allow women to marry or divorce

because the power is the woman's

power and the power would cover men marrying or divorce

marrying or divorcing women because

it would be engaged with conduct

with women. Wouldn't you say after

a while, "hang on, in this new

marriage and divorce laws, under we

men seen as mere appendages?" Well,

perhaps on occasions we are. I'm

trying to make a serious point.

trying to make a serious point. The point is to uphold laws under the

corporations power, the questions

you ask are of the new economy.

They are questions you talk about

will this add to the productivity

will this add to the productivity of the corporation. The focus turns

about its relationship with the

corporation. On the other hand,

when more general powers are used

like the labour power, the validity

of the law turns upon whether, in

determining industrial peace, the

legislation is ensuring adequate

terms and conditions between

employees and employers. I

employees and employers. I actually think this is the most dangerous

part of the bill. Corporations

part of the bill. Corporations have enormous power in this country and

we are increase

we are increasing the power of one

bold stroke by giving a docile

labour force under these

extraordinary provisions. I think

the bill will be upheld in the main

constitutionally. I don't want to

annoy my State colleagues. I think

that the law is pretty clear that

the bill's provisions will uphold

the making of individual or

collective agreements between

corporations and employees. The

real question is whether the bill

can say that for corporations, the

Work Choices law is the only law to

the exclusion of the states.

the exclusion of the states. That's called a section 1 09 or

inconsistency argument and here

there are provisions in the bill

that are drafted so broadly that

that are drafted so broadly that I'm sure some will fall. But how many

will fall and how strong the High

Court will be is a difficult

question. I'm not given huge

confidence. I just read the

political advertising case, so I

think that while some areas of the

legislation will fall, its

centrepieces will be constitutional.

What to do? As I say, it's by 2010

it won't be a case of repealing. I

think we should, in the Labor Party

and those of us interested in

fairness and justice, should be

asking, "what sort of a labour law

do we want? How do we want working

people to be treatd in Australian

society oerro or what I would call

industrial citizens?" I think it is

quite clear that we want industrial

citizens to have adequate minimum

rights. I think we would also say

that we want industrial citizens to

be protected from arbitrary,

capricious or discriminatory

employer behaviour, and that

employer behaviour, and that happens in structures, whether they be

public sector or private sector.

Now, I think that our current laws

lack the capacity to stop arbitrary

Orica prishious employer power,

though they may stop discriminatory

employer power. And you only stop

arbitrary Orica prishious power by

allowing employees to bring

proceedings when they have been

unfairly treated, unfairly

unfairly treated, unfairly dismissed or unfairly demoted. Maybe one may

not resurrect a process, but one

would want to resurrect a statutory

grievance process to ensure that

people are treated with fairness

people are treated with fairness and justice, and without justice, the

laws may as well be clanging Sim

bals. Collective bargaining will

diminish and the unions will be

weaker. One strategy for the trade

union movement will be to

unincorporate themselves. That

unincorporate themselves. That will require the states to re-enact some

laws that were obsolete on

laws that were obsolete on re-traint and trade conspiracy, but if I were advise

advising state governments, woi be

brushing them off and getting them

onto the statue book. I think if a

majority of Australians want to be

dealt with collectively and pursue

dealt with collectively and pursue a collect difficult agreement, that

should be their right, as it is

should be their right, as it is with our American, Canadian, British,

European, Japanese and New Zealand

sisters and brothers. These are

what we should be looking at. What

should be the fundamentalal rights

of people at work in a democratic

policy like Australia. Can I say

policy like Australia. Can I say in conclusion that I've lived a long

time. And what I am seeing at the

moment is ideas of free market

forces operating to make a better

world. They're operating on

theories of neo-classical

economists, much of their

economists, much of their literature is theoretical and not imperical.

Those ideas are at their zenith.

They remind me of when I was a

They remind me of when I was a small boy, meeting socialists in the

boy, meeting socialists in the 1930s who told me they thought in the

1930s that socialism was the way to

cure all evils. In the future,

perhaps of my children and

grandchildren, when I am in that

grandchildren, when I am in that met for kal law library in the sky,

for kal law library in the sky, with my area phones on my areas

my area phones on my areas listening to the world below, the free market

idea will have fallen because the

pressures of globalisation will

pressures of globalisation will show clear winners and losers, and

clear winners and losers, and people will go out on the streets and

demand. It is then that we must

recognise, as have all great labour

law scholars that justice is at the

centre of labour law and we should

be asking what are just and fair

terms and conditions of employment,

especially for the vulnerable and

disabled industrial citizens of our

marvellous nation. Thank you very much.

marvellous nation. Thank you very much. APPLAUSE

Thank you very much, Professor Ron

McCallum. We have a period of

McCallum. We have a period of media questions, starting today with

Laurie Wilson. Laurie Wilson,

Professor Ron McCallum, I'm a

director of the National Press Club.

I was involved in a recent debate

with on the one side Sharan Burrow

from the trade union no. And the

Government on the othered.

Following that debate, the Sharan

Burrow said to me the Government

simply don't understand the mess

it's going to get itself into as a

result of creating this. I wonder

if you could make a comment on that

observation? As an extension of

that, do you think the Government's

intent or motive, if you like, are

as negative as - the negative

as negative as - the negative impact that you've portrayed that will

that you've portrayed that will flow from this legislation? I don't

from this legislation? I don't think the Government's motives are as

negative as I've impacted because

I'm not sure how many of the

Government people really understand

the bill. It's very hard to read.

Now, I have spent my life, the last

35 years, as an adult work ng the

area of labour law. I don't think

they understand the consequences.

It is a bit like this business of

averaging working hours - standard

hours. I think that was a

late-night Cabinet decision and

people didn't have the experience.

I think there are genuine people

I think there are genuine people who believe on the Government side,

first and foremost, that we must

raise productivity and the only way

to raise productive is overtime,

lower minimum wages and lessen

benefits to workers. But a lot of

the legislation is clearly

anti-union motivated. I mean, I

think one of the reasons why the

Fair Pay Commission was created and

it was taken away from the

commission was because the

Government didn't like to see trade

unions use the Australian

unions use the Australian industrial relations. Industrial Relations

Commission as a platform for test

cases. I think the Government

cases. I think the Government would be happier if unions were industry

unions, like in the United States,

where it was business unionism

confined to one enterprise. But I

think Government members genuinely

believe that what they're doing is

increasing productivity, but can I

say, without ds respect, they do

say, without ds respect, they do not know what they are doing. Just

before I invite the next question,

Professor McCallum, just

Professor McCallum, just elaborating on one point that was involved

there, you suggested that you have

some reservations about the way the

whole legislation was drafted. I

mean, how was it drafted and why do

you have those reservations? I

you have those reservations? I don't know definitely how it was drafted.

My understanding was that it was

My understanding was that it was put out to groups of lawyers and

presumably they came together, but

they did different parts and they

wouldn't have seen the legislation

as a whole. And I think that's why

things like prohibited provisions

and collective agreements didn't

and collective agreements didn't get done. When I drafted with others,

done. When I drafted with others, I just helped. The industrial

relations Act 1996 of New South

Wales and the industrial relations

Act of 1999 of Queensland, we

Act of 1999 of Queensland, we worked as a team,er and we produced brand

new Acts, so they were clear and

readily understandable. In some

ways, this government want

adventurous enough to produce a

brand new Act, but I think it was

only wanting to use the

only wanting to use the corporations power and not use the labour power

except in transition that meant

except in transition that meant they had to come up with this

had to come up with this complicated process and I wonder how many of

process and I wonder how many of the lawyers drafting it have read

through all of it entirety. No

doubt clients will require them to

do so and some of them will do

pretty well out of it because I

pretty well out of it because I have never seen such complication. It

reminds me of the industrial

relations Act 199 91 of New South

Wales which was so rigid for those

who have a New South Wales

background and you couldn't make

background and you couldn't make new awards and it was a contractual

process. By the time I was

process. By the time I was involved in the industrial relations

taskforce in 1995 in New South

taskforce in 1995 in New South Wales under Mr Shaw, employers had melted

away from that legislation. I

away from that legislation. I think there will be quite a number of

employers, particularly small

employers who will find the

rigidities too complicated and will

also melt away from this

legislation. Professor McCallum I'm

from the 'Sydney Morning Herald'.

The Government argues that the

The Government argues that the quasi court that is the IRC isn't the

appropriate place to be testing

economic arguments or setting the

minimum wage, partly because

economic witnesses can be

intimidated, it claims. Do you

think there is any validity in the

argument? Nick, I am a great

believer in ballot boxes, in juries,

and in court and tribunal processes.

I think the best way to determine

minima is to have the evidence in

open court, to have it produced, to

have it public, and to have it

tested. I know of no cases that

tested. I know of no cases that I'm aware of - and I haven't read all

the transcripts - where economic

witnesses have been intimidated.

I've read through the cases and it

seems to me the economic decisions

are - evidence is examined very

closely. People disagree about it.

You get 100 economists and they

disagree about things, but more

seriously, that's part of our

heritage. We built that system up

heritage. We built that system up a century ago when memories of our

convict origins were extant and

convict origins were extant and when we had a strong notion of like

we had a strong notion of like cases being treated alike. It is part of

our ethos and the best way to test

this is publicly. I don't know how the Fair Pay Commission will

determine its processes, but I

determine its processes, but I doubt that it will have public hearings

and it will be on the papers. I

would uch rather have a process

would uch rather have a process with flesh and blood people. All

institutions have imperfections,

institutions have imperfections, but they are what we have to live with

and it's only by living and working

with institutions that we become a

real community. Peter Phillips.

Professor McCallum, Peter Phillips,

one of the Directors of the

one of the Directors of the National Press Club. You mentioned earlier

in your address that you have in

fact had experience with working

with Labor Party governments in

states of New South Wales and

Queensland. Against this

background, I ask you perhaps to

walk a little on the wild side and

speculate a little. I wonder

whether the fait accompli that will

be in place after this legislation

will not only be in the legislation

itself but in its practical

irreverse built. Look forward to a

time when in early 2006 the

arrangements and structures will be

in place consequent upon the

legislation. If the Labor Party

should happen to win a federal

election in 2007 but be facewide

election in 2007 but be facewide the near inevitable blilt of continuing

intrance ji ence in the Senate

through to '10 or '11, in reality

what can the Opposition seriously

and credibly hold out as a real

and credibly hold out as a real list tick ledge dj dj prospect of

tick ledge dj dj prospect of undoing the legislation and what would you

tell them? I would suggest that

tell them? I would suggest that they not get hooked up on repealing this

and that, but to start from first

principles. For example, I would

principles. For example, I would be putting to the Senate, "OK, you can

have secret ballots for strikes,

have secret ballots for strikes, but in return if a majority of people

in return if a majority of people at a workplace and their trade union

wish to be dealt with collectively,

then the employer should be

then the employer should be required to deal with them collectively and

bargain in good faith, as is the

United States, Canada and Britain.

United States, Canada and Britain." I would be putting propositions

I would be putting propositions like that. I would be putting

propositions that we must be very,

very clear about our minima. I

would be against provisions which

would, for example, allow people

automatically by just writing to

cash out their annual leave. I

would be against propositions which

would am low an employer, even as

the legislation may read - it may

the legislation may read - it may be amended - to commence three months'

notice before terminating it and

putting people automatically back

onto the minima. These are the

things. There are so many

outrageous things in the bill, that

if they're looked at individually,

that's where I would start. You

start with the fundamentalal rights

of the way you would want to be

treated yourself at work - the

good-neighbour principles, and you

don't get hung on on repeals. As

for the states, I have been a

for the states, I have been a little disappointed. Since the State

statutes of the 1990s we have seen

very little. There is a lot the

states could have done, could have

enacted a labour code, could have

had processes for work councils, as

has happend in Europe. They could

have explored individual ways of

making individual contracts under

the State system where people are

protected. I think what we are

seeing is really ideas from the

Government, ideas that I disagree

with, as I have spent very clearly,

but we are not seeing enough ideas

from the Labor Party or the State

Government. Union recognition. If

a majority want it, let's live with

democratic principles - should be a

cornerstone of any Labor Party

cornerstone of any Labor Party party as it is at cornerstone of the ILO

and the United States Wagner Act.

Again, professor, before I invite

the next question, you've raised an

interesting point there. When

interesting point there. When would you expect that the legislations

will be passed and will start to

make some measurable impact so the

people can see what's happening and

where it's likely to lead? I'm not

an economist, but let me try. The

legislation, I have no doubt, will

be passd in the next sitting of the

Senate and will receive the royal

assent. I would assume by March or

April it will be in place and we

will have people quickly running to

their lawyers to find out whether

they are under a State or federal

jurisdiction. The High Court

challenge won't hand down a

challenge won't hand down a decision until the beginning of that --

until the end of that year or the

beginning of the next. We will see

during 2006, pliers particularly in

hospitality and other areas where

there are plentiful supply of

labour, dropping conditions and

entering new agreements. We will

see by 2007 and 2008 the minimum

wage not rising the way it has done

to meet inflationary and other

pressures. It may not fully bite

pressures. It may not fully bite by the 2007 election, but by 2010, we

will have seen the dim minute nutrition

Wages and working conditions should

be put in place before new projects

operate. Whatever it is, it is not

an agreement. That's my basic

point. If you want to do that, say

so openly - I don't mean you - but

let the Government say so openly clear

let the Government say so openly and clearly that is what you should be

allowed to do. By clothing it in a

mask of agreement, it just makes

nonsense of it. In relation to

nonsense of it. In relation to your comment, yes, I think Australia

would benefit from a national

system, but I don't think that the

way this bill is operating, using

way this bill is operating, using as its only fulcrum, the corporations

power which is pushing the

power which is pushing the non-corps ra tiff employers on federal awards

into the states whether they want

into the states whether they want to or not and giving them the choice

or not and giving them the choice of incorporating is the way to do it.

This bill, in its first two years

This bill, in its first two years of operation, will create more

confusion than now exists, and will

create a great deal of frustration,

particularly if you are a

corporation and you're moved into

the federal arena, but you find

the federal arena, but you find that you're uncertain about various

provisions of your agreement,

whether or not they're prohibited

creating confusion. The Government

could have gone all out and used

could have gone all out and used all of its constitutional powers and

of its constitutional powers and the labour power as well and created

more of a national system. It

more of a national system. It chose not to do so. Given its parameters

and ideology, for understandable

reasons. Don't think we're going

reasons. Don't think we're going to get a truly national system until

get a truly national system until we have more Corporation from the federal and state governments. Can

I say that it took 20 years to have

a workable company law, and that's

what we should be working towards.

This system depends for its

operation upon labour states giving

in and referring their powers and

Septembering advise from their

Treasury. It reminds me of the

equip from Paul Keating: Never get

between a bag of money and a State

premier. So, I agree with you,

Tony. A national system is the

right way to operate. This soo me

doesn't seem to be the raith way to

go back it. Mori Riley. I have two

questions. The first is - I think

when it was revealed we have 700

pages of legislation we were hoping

for something a bit more simple.

Could you comment why the strategy

has been taken to basically amend

has been taken to basically amend an Act rather than repeal the Act and

rewrite it to reflect what they

wanted. As a non-lawyer, it seems

wanted. As a non-lawyer, it seems a sensible strategy, from my point of

view. Secondly - and this might go

against the grain - but what do you

see as positives in the existing

legislation as put forward? I was

asked that question, the second

question, by a producer of a

talkback radio show yesterday and I

thought for a minute and she said,

"Are you alright?" I said, "Now, I

have just been thinking about the

definition and other sections. I

actually can't think of anything

positive in the legislation and I

say that seriously." Maybe you

say that seriously." Maybe you could say if there was some taking away

say if there was some taking away of unfair dismissal from very small

businesses and some other

fast-trablinging process you might

see that as a -- fast-tracking

process, you might see that as a

positive move, but taking it away

from corporation employers, that

doesn't seem positive. I say that

in all seriousness when comparing

in all seriousness when comparing to our other common law countries. I

think a new Act would have been the

way to go, but to make it simpler,

you would have to have adopted a

different strategy. The strategy

that has been adopted really is one

of a labour law for corporations,

and so you've got to have

and so you've got to have provisions dealing with those people unthe

federal system who aren't

corporations - huge transitional

provisions. And you have got have

have provisions in the legislation

dealing with those corporations

under the State system and now find

themselves in the federal system.

When the Act comes into force, who

gets paid what on the next day? I

also this there is a thing about

federal drafting, and I say this

about all recent governments, back

to Hawke and before. You see is in

migration, a par excellence. You

see it in labour law and you see it

in terrorism legislation. By the

way, I think the terrorism

legislation is a far more important

issue to discuss than this one. I

think it reel tli threatens some of

our basic liberties, stlikly the

sedition areas. The Parliament is

saying not only will we make the

law, but we will interpret it by

telling you what you should do and

what you can't do and it's a bit

like my aunt when I wash the cups.

Good legislation is clear and

Good legislation is clear and simple and gives discretion to courts,

tribunals and administrators to operate. This tribunals and administrators to operate. This legislation is

operate. This legislation is almost afraid of discretion. Why

afraid of discretion. Why shouldn't a collective agreement have in it a

provisional lowing people to take a

certain amount of time off for

certain amount of time off for trade union training? Why should we, if

we're going to market forces say to

an employer, "You will get fined

an employer, "You will get fined $33 for that."? Why should it be that

for that."? Why should it be that if you have a corporation with less

than 100 employees and you're

than 100 employees and you're trying to attract good labour, why

shouldn't you be allowed to put in

shouldn't you be allowed to put in a provisional lowing them to test a

dismissal or a demotion, but

certainly a dismissal? It is these

things that are all through the lj

lags. No, we don't want you to do

this and that. This is part of the

problem. It's complex. It's not

trusts us to be adults and at the

end of the day it is not trusting a

lot of the free market where that

free market goes against

free market goes against ideological forces. With all respect, they do

not know what they do. Laurie

Wilson, professor. As someone who

has spent much of his working life

on the hill in the press gallery, I

think I can hear the distant knives

being sharpened of government spin

doctors to portray you as a little

more of a captive for the unions

more of a captive for the unions and mouthpiece for the Opposition. How

do you plan, how would you respond

to that allegation? Well, when I

chaired the Bracks Government's

independent taskforce in Victoria

made up of employers and employees,

on more than 50 occasions in the

Victorian Upper House my report

wasn't questioned, but it said I

wasn't questioned, but it said I was biased. I had given a lecture ound

the trade union something or other

series in the mid 1990s, and that

was seen as doing something bad.

Look, I'm happy for people to

portray me as who I am. I'm Ron

McCallum. I have worked all my

McCallum. I have worked all my life in labour law. I have worked for

state governments. What I want to

hear is not how bad I am or that I

am biased. I would like people to

have examined what I said and if

it's wrong and I'm wrong, fair

enough, but I've looked at this

enough, but I've looked at this bill as carefully as I can, using

synthetic speech, and I've given it

my spin. I'm happy for people to

show me that I'm wrong or that I

have a different perspective. But,

you know, frankly, isn't this

country just so full of spin? Why

country just so full of spin? Why do we need it? APPLAUSE Well, in that

spirit, Professor McCallum, let me

ask you a final question from the

chair, related really to the last

one. You've talked about the bill

today, but on other occasions you

have talked about the sis tome and

you do acknowledge the need for necessary change

you do acknowledge the need for some necessary changes. What are they

and where are they not covered by

the legislation? Well, first and

foremost, I want to agree with Tony

who spoke earlier. I would like to

see more Corporation between the

federal and State systems to create

a truly national system. I would

like to see us have guaranteed

adequate mi initials ima, whether

they -- minima, whether they are

they -- minima, whether they are to be done by the Australian

be done by the Australian Industrial Relations Commission or some other

body. Whether they be legislated,

to stop a race to the bottom. I

think those workers who want to be

dealt with collectively, if a

majority wants it, they should be

allowed to have it. Employers who

have a majority workforce like that

should be required to bargain in

good faith. For those who don't

want collective bargaining, I think

we ought to, as a society, at least

encourage in large employers, the

use of works councils and

consultative committees, as happens

in Britain, as happens in Europe,

and even the Americans are talking

about these sorts of processes.

about these sorts of processes. You see, the model we're enacting looks

to me a model of the 1980 that we

are introducing in the preschool

years of the 21st century. I would

like to see people protected from

arbitrary or discriminatory

behaviour, either through unfair

dismissal or unfair grievance

processes which operate in New

Zealand. All I ask for is fairness

within our economic structure. And

within our economic structure. And that's where law should begin and

end, and that's where the debate

should lie centrally, not only for

the Government, but for the Labor

Party, and I would like to

Party, and I would like to encourage people to think about those things

and to think about how we might

sculpt a new lab