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Tuesday, 10 March 2009
Page: 1000


Senator SIEWERT (1:36 PM) —The Greens believe that the workplace has a central part to play in most people’s lives. We spend a large proportion of our time at work, and work is important for our social and economic wellbeing. The regulation of the workplace and the relationship between employers and employees affects the lives of millions of Australians. It has a central role in shaping the type of society we live in and it reflects the values we hold. The Fair Work Bill 2008 is therefore an extremely significant piece of legislation.

Fundamental changes to our industrial relations laws have a long-lasting impact on not just our workplaces but our broader community. It is therefore important that we get this bill right. What we must never forget is that employment law is not just about the economy or productivity; it has an absolutely essential social value. Labour is not merely a commodity. Workers must be treated with respect and dignity, and the framework of our laws is a significant factor in ensuring such respect. The debate about this bill should not just be about its immediate impacts, whether it will harm productivity or encourage employment, but also about the long-term consequences of consolidating fundamental change in our industrial relations system and its effects on our community.

The Greens are informed by the following values when considering workplace laws: that we can create a sustainable future with fair workplaces and sustainable communities, protect our environment and ensure a healthy economy; that all people have a right to pursue their wellbeing in conditions of freedom and dignity, economic security and equal opportunity; that working people have the right to be involved in decisions about their work; and that free, independent and democratic unions are an essential pillar of a civil society.

In evaluating this bill the Greens have not limited ourselves to comparing the bill to Work Choices or to comparing it to what the government has said previously. We believe the bill needs to be independently assessed on its own merits and not justified merely by the fact that it may be better than Work Choices and the experiences we have had over the last few years. We believe the overall question is whether we will have a better, fairer industrial relations system, not merely how it can be graded against Work Choices.

The economic arguments for and against this bill will, I am sure, be debated at length in this chamber. The Greens do not believe the bill will have a significant impact either way on productivity or employment, certainly not compared with impact of the worldwide economic circumstances we are now facing or the looming environmental crisis. In fact, we strenuously reject arguments that workplace rights—treating workers with dignity—are a luxury only to be enjoyed in the good times. We note that the same organisations that are arguing against the expanded employee rights in this bill, on the basis we are facing difficult economic times, are the same groups that supported the extreme ‘flexibility’ of Work Choices in the good economic times. It seems that for some employers, and unfortunately for some in the coalition, there is never a good time to accord workers decent labour standards.

As a global community we are facing serious challenges—the current economic crisis and a severe environmental crisis. Either we can start transforming our society and our economy now to meet these challenges or change will happen later, with more pain and trauma. The current economic and environmental crises, which are in many ways interlinked, provide us with the perfect opportunity to act, to approach the development of such vital laws with new thinking, free from the political compromises of the past few years. We cannot afford the same thinking that got us into our current situation, the naive belief in deregulation, in maximum ‘flexibility’ for business and that the profit motive will provide for all. We need new thinking about how we can refashion our society and its key institutional structures—economically, socially and environmentally—to move us to a low-carbon economy where we meet the environmental, economic and social challenges and create a sustainable future.

A transformed economy includes doing business differently. It includes respecting workers, workplace democracy and dignity at work. Some may say these are old-fashioned values, but we think they are values that must endure. It is misguided to assume that fair wages and conditions and fair dispute resolution can be left to the market. There are some workers for whom the market will provide but there are many others whom the market will fail, which is why we need to provide a robust set of protections in this new industrial relation system. We saw the evidence of this with Work Choices and the loss of important workplace conditions and less take-home pay for many workers.

A measure of what is wrong with where we are at present is indicated by comparing the profits-to-wages share of our national income. The profit share is at record high levels and trending upwards, while the wages share is at the lowest levels since the mid-sixties and trending downwards. These trends, coupled with the justified community outrage at excessive CEO pay, tell us something about where we are at as a society and what we value. As a community we are now facing the consequences of an overly individualised society. In the past we have put community values on the backburner. It is way past that time. Now is the time for change. We need to refocus on the common good and on what we can achieve together. The Greens are not convinced that the Fair Work Bill provides the necessary framework for us to meet the challenges we as a community face in the coming years. It is for these reasons we view the Fair Work Bill as a missed opportunity for the ALP government.

The bill has some positive aspects, in particular the provisions supporting collective bargaining—including the good-faith bargaining provisions and the low-paid bargaining stream—as well as the expanded general protections and transfer of business provisions. Overall, the bill is an improvement on Work Choices. Quite frankly, how could it not be? The evidence on Work Choices is clear: it ripped away workers’ rights, was used by employers to exploit workers by removing pay and conditions and was explicitly anti-union and anti collective action.

Unfortunately, however—and this is why it is so essential that we do keep going back to Work Choices—the bill also keeps many elements of Work Choices. It builds on the Work Choices architecture, with the use of the corporations power, retains the current severe restrictions on taking industrial action, provides for a downgraded awards system, incorporates the idea that some workers should have more rights than others and cannot quite shake off individual agreements. What the bill does not do is address some of the most pressing issues facing Australian workers. Unreasonable working hours remains a significant issue for many workers, whether it is working some of the longest hours in the OECD, working unsocial hours or not working enough. The Fair Work Bill provides no new thinking on addressing these very important issues. It takes its working hours provisions substantially from Work Choices and provides for individual agreements which will have the same potential as AWAs to undermine people’s conditions, including penalty rates for unsocial working hours.

The Fair Work Bill adds very little to the ongoing concerns about the work-life balance. It introduces a right to request flexible working arrangements but gives the provisions no force. These matters of working hours and the work-life balance remain important in the context of this bill and must not be forgotten in the midst of fears of job losses. In fact, some of the innovative means of addressing these issues could be taken on board in addressing the downturn in the economy by keeping people in and attached to the workforce for when our economy recovers.

Another perennial issue is pay equity. We still have a situation in this country where women are paid less than men for doing work of equal or comparable value. The pay gap nationally remains at around 16 per cent, while in my home state of WA it is up to around 28 per cent—and getting worse. Such disparities are unacceptable. We will wait to see how the new pay equity provisions in the bill operate in practice. But more attention has to be paid to pay equity in the award review process and the minimum wage setting. We do not want all the hard work that went into the pay equity reviews in the states going to waste. These are all primary concerns in the workplace. They are about ensuring that work is not just an economic activity but provides quality of life

The major flaw with the bill is the lack of independent dispute resolution processes that can result in the determination of a dispute. While it is a positive that the ALP has introduced last resort arbitration into the collective bargaining provisions and also, importantly, into the low-paid bargaining stream, there remains no means of effectively resolving workplace disputes unrelated to bargaining. In particular, disputes about the application of the National Employment Standards, award or agreement provisions are unable to be finally determined by an independent arbitrator unless there is consent by both parties.

The Greens support the call made by many submissions to the Senate inquiry for the bill to provide Fair Work Australia with a more general power to resolve workplace disputes. We also note that many of the strongest calls for Fair Work Australia to retain a broad arbitration power have come from representatives of workers from low-paid industries, often women, who have historically been less able to exert industrial muscle to achieve fair outcomes. Ms Julie Bignell, from the Queensland Australian Services Union, eloquently argued for the retention of independent dispute resolution and summed up the fundamental shift this bill represents. She said:

Arbitration is in our view the epitome of the Australian value that we all aspire to, and that is a fair go. It is a feature of our country for a hundred years and it was a unique feature that was very much the envy of other countries because it preserved employment relationships, not destroyed them. The current bill’s provisions do not create an environment where differences can be settled and the parties get back to work quickly. Instead, they create a legalistic framework where workers will have to pay lawyers to represent them in court, probably many months after the dispute arose, and the focus of the litigation will not be on preserving the employment relationship but will be on assigning blame and ordering penalties against one of the parties. We say this is not in the spirit of a fair go and we say that justice needs to be accessible to everyone and in order to work, not just those who can afford a lawyer.

The shift from a framework focused on resolving disputes to a complex and complicated series of laws to be enforced will have long-lasting consequences for our society. It further tilts the balance towards employers, particularly in difficult economic times.

The fundamental imbalance in the workplace was acknowledged by our forebears in our Constitution. In recent years, the dominant ideology has focused on the individual and tried to deny or ignore the inequities that resulted. While the bill provides for strengthened collective bargaining rights, the need to address the power imbalance between employees and employers infuses all aspects of the workplace. And this is where the Fair Work Bill fails—as did Work Choices. If a worker or a group of workers has a dispute in the workplace, whether it is about changes to rosters, working hours or the general treatment of workers—anything unrelated to bargaining or the actual enforcement of a right—the resolution of the dispute will favour the strongest party. The strongest party is likely to be the employer. This is particularly the case given industrial action outside of bargaining is also unlawful under this bill. Workers are therefore left disempowered in the workplace.

If we are turning our back on our history with a rejection of arbitration, we need then to recognise in our law the fundamental right of workers to withdraw their labour. Such a right is intrinsically linked to the freedoms of association and expression and the right to peaceful assembly. The Greens do not shy away from our support for the right of workers to withdraw their labour in pursuit of their economic or social interests. Any sense of fairness in the Fair Work Bill is undermined by the denial of a fair and final dispute resolution process coupled with the denial of the right to take industrial action. The Greens believe that this should be included in our industrial relations system.

Apart from the philosophical differences we have with both major parties about the regulation of workplaces, we have a number of more specific concerns with the provisions of the bill. Our key concerns include the fact that individual flexibility arrangements have the potential to operate like AWAs in reducing people’s take-home pay and conditions. At this stage, we appreciate why the government chose to not register these individual agreements—that is, they do not want them to be statutory. In fact, the government have come up with a halfway house under pressure—particularly from the mining sector in my home state of Western Australia—to maintain individual flexible arrangements. They came up with those as a halfway house instead of having individual contracts. Now we have an instrument that nobody is going to be able to check or review. We simply will not know if it is undermining people’s rights and conditions.

We are concerned that the bill maintains restrictions on the content that can be agreed to in enterprise agreements. We believe that employers and employees should be able to agree on whatever they want to in those particular contracts. We believe that that is in fact in line with ILO conventions. We are concerned—and we have repeatedly put this concern on the record—that the unfair dismissal laws do not provide the necessary protections for all workers. We are extremely concerned about the fact that workers in small businesses will have different rights from those in larger businesses. We are concerned that the award modernisation process is resulting in workers losing important conditions.

We articulated this when we discussed the previous transition bill that established the award modernisation process. We are deeply concerned that the issues that we raised at that time are now, unfortunately, becoming reality—it is finally dawning on people that conditions are being lost through this award modernisation process. We believe that the process needs to be reviewed much sooner than after four years, as proposed by the government. We are concerned that the bill fails to resolve the jurisdictional mess that comes from relying on the corporations power, leaving workers in my home state of Western Australia at the mercy of a state government that wants the worst of Work Choices back. It also leaves many workers that work for local government and non-government organisations in an unresolved jurisdictional mess. A number of people raised those concerns during the Senate inquiry.

In the course of the debate in the Committee of the Whole, the Greens will move a series of amendments to address what we view as some of the most glaring inequities and flaws in the bill. We do this with an eye to providing all those who work with the protections, rights and responsibilities of a fair, just and sustainable society. Yes, we believe the government has a mandate to provide a fairer system; but that fairer system is not there yet. The government went to the electorate during the election with a set of policies, as did the Greens. The Greens believe we also have a mandate to ensure the government keeps its promise to provide a fairer industrial relations system in this country. We will pursue amendments to ensure the government delivers on its mandate, because we also have a mandate to ensure that a fair system is provided. As I articulated a moment ago, we will move a series of amendments around awards, around the National Employment Standards, around collective bargaining and around unfair dismissal to ensure that the government keeps its promise to Australia.