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Tuesday, 10 March 2009
Page: 1087


Senator HURLEY (5:54 PM) —In 1907 the President of the Commonwealth Court of Conciliation and Arbitration, Sir Justice Higgins, set the first minimum weekly wage. The Harvester judgment ensured a worker received enough remuneration to provide decent food, shelter, water and ‘frugal comforts’ for his family. The Harvester judgment said that ‘every Australian was entitled to every single one of these standards, every day of their lives and that if we as a nation did not endorse this, we could not claim to be a civilised society’. Simply put: it was about a fair day’s pay for a fair day’s work.

This concept of fairness is integral to the history of industrial relations in Australia, just as the concept of a fair go is a fundamental value of our Australian cultural identity. On 27 March 2006, the previous government abandoned this basic tenet of Australian culture, with its imposition of Work Choices on the Australian people. The stripping away of a new employee’s right to collectively bargain, the removal of unfair dismissal provisions and the removal of the no disadvantage test—only to be reintroduced as a last-minute, bungled ‘fairness test’—decimated the rights and remuneration opportunities of Australian workers and their families. Work Choices, contrary to the coalition’s $121 million advertising campaign, did nothing to simplify our workplace relations system. With more than 1,400 pages of legislation and regulation, it created a complex, legal minefield for employers and employees alike. As a Federation Press paper noted in December 2006:

… the principal thrust of the Work Choices reforms has been to individualise employment relations and, as a corollary, to marginalise both trade unions and industrial tribunals.

In this sole regard, the legislation fulfilled its ideological purpose to individualise employment relations, remove rights at work and marginalise trade unions, albeit to the detriment of hundreds of thousands of Australian families and small businesses, because many felt overwhelmed by the complexity and uncertainty of the process.

In November 2007, the Australian Labor Party took our alternative policy for a new era of workplace relations, Forward with Fairness, to the Australian people. The rest, as they say, is history. Our mandate for the Fair Work Bill 2008 is, frankly, overwhelming. With the introduction of the Fair Work Bill, the government is introducing a simpler, contemporary system, with laws that balance the needs of employees, their unions and their employers. This bill marks a return of the fair go for all Australians in the industrial relations sphere. The bill itself is shorter, simpler and less ambiguous than the Work Choices legislation, at approximately half the size of the existing Workplace Relations Act. It is easier to read and apply and, rather than reinventing the wheel, makes practical use of over 100 years of jurisprudence by maintaining understood concepts. For example, when examining the allowable content of an enterprise agreement, the concept of ‘matters pertaining to the employment relationship’ is maintained, as it is well tested and brings with it established legal principles.

The bill establishes a new one-stop shop for industrial relations in the Fair Work Australia organisation. Independent of unions, businesses and government, Fair Work Australia will be a contemporary and accessible agency, with a focus on providing fast, effective assistance to employers and employees. The Australian Industrial Relations Commission and the Australian Industrial Registry have served Australia well since their establishment in 1904 as the Commonwealth Court of Conciliation and Arbitration. Work Choices merely added to the bureaucracy by creating the Australian Fair Pay Commission, the Australian Fair Pay Commission Secretariat and the Workplace Authority. Combining the roles of all predecessors, Fair Work Australia will vary awards, make minimum wage orders through annual reviews, approve agreements, determine unfair dismissal claims, make orders on good faith bargaining and industrial action and conciliate to resolve disputes at the workplace.

On 16 June 2008, the Rudd government released 10 National Employment Standards as a minimum safety net for all Australian workers. In addition, the Australian Industrial Relations Commission is working on the creation of modern industry or occupation based awards. Modern awards will build on the National Employment Standards and may include an additional 10 minimum conditions of employment tailored to the industry or occupation. This will work to ensure that industries can maintain unique entitlements and flexibilities that have been negotiated over many years and will recognise that not all sectors have the same minimum award requirements. Under this bill all employees will have clear, comprehensible, comprehensive and enforceable minimum protections that cannot be stripped away.

The Australian government firmly believes in the principle of freedom of association—the right of every Australian to choose whether or not to belong to a union. The Fair Work Bill will streamline freedom of association and a number of other workplace rights into one part of the act. Under these general protections of workplace rights it will be unlawful for a person to take adverse action against a person because they have exercised a protected workplace right. Adverse actions include dismissal, discrimination, refusal to employ or the prejudicial altering of the position of a person.

Workplace rights remain an entitlement under an award agreement or industrial law. The Fair Work Bill provides clear, tough rules on industrial action. Employees may only take protected industrial action to support or advance claims during enterprise bargaining negotiations. Actions must be authorised by a mandatory secret ballot and bargaining representatives will be required to provide the employer with three working days notice of their intention to engage in protected industrial action. Fair Work Australia can order the termination of the action in circumstances of serious economic harm or the endangerment of the safety, health or welfare of the community. This section of the bill largely maintains the existing provisions for protected industrial action.

The right of entry provisions of this bill, which have been much discussed today, balance the right of the employees to be represented by their unions with the rights of employers to get on with running their businesses. In its Forward with Fairness policy the government committed to maintain the existing right of entry rules, and it has done so. Unions have a longstanding role in helping to ensure compliance with industrial law, and unions will be able to access and copy employment records relevant to a suspected breach of law being investigated. This was the position that existed prior to Work Choices and for many years prior to that. Strong protections are in place against misuse of information obtained by a union, with fines of up to $33,000 for a union which is proved to have misused information obtained. So the claims about setting up a new police force are wildly out of line with the actual provisions of this bill.

Enterprise bargaining reforms were introduced by the Keating government in 1993. A key component of the success of enterprise bargaining was the requirement for parties to bargain in good faith. Good faith bargaining relates to the process and conduct of enterprise bargaining negotiations rather than to the content. It requires all parties to communicate openly and to focus their negotiations on key issues, with an aim to forming an agreement. There was no requirement under Work Choices for parties to bargain in good faith. Even where a majority of workers wished to negotiate a collective agreement the employer could refuse to bargain and did.

I would like to remind colleagues of a very public dispute that occurred in my home state when a group of 16 electrical technicians were locked out of their workplace for one month because they wanted an enterprise agreement. Under the Work Choices legislation the company sought and succeeded in terminating its existing enterprise agreement once it had expired. Three of the company’s longest serving technicians, who had sacrificed wage increases for better redundancy provisions in their previous agreement, were now entitled to minimum redundancy provisions. As a result of being made redundant following the termination of the agreement, one of these technicians lost $86,000 in redundancy pay. He had 30 years of service with the company. The remaining technicians were then offered AWAs with a wage increase of one per cent per annum and an additional 2.5 per cent linked to what appeared to be impossible productivity targets. When they refused and undertook four hours of protected industrial action they were locked out of the workplace for one month. Under Work Choices the employer maintained the right to unilaterally deny the majority of technicians the right to choose an enterprise agreement and collectively bargain.

The Fair Work Bill provides for Fair Work Australia to determine whether there is majority support for negotiating an enterprise agreement and if so will require an employer to bargain collectively with the relevant employees. Collective bargaining is viewed as a fundamental human right under international law by the United Nations and the International Labour Organisation. Conventions 87 and 98 were ratified by the Australian government in 1973 and were then rendered meaningless by the Howard government’s introduction of Australian workplace agreements. The Fair Work Bill seeks to restore these internationally recognised rights for all Australians.

The other part of enterprise agreements and bargaining relates to employees in low-paid sectors. They often lack the skills and bargaining power to negotiate agreements. Similarly, individual employers in low paid sectors often lack the time or resources to negotiate the agreement. It is onerous for small business people to negotiate such agreements. Under the proposed legislation Fair Work Australia will be able to facilitate multiple-employer bargaining for low-paid employees to assist workers in areas like child care, aged care, community services, security and cleaning. Individual employers will be able to seek exemption from the process if they feel they should be excluded, and decisions by Fair Work Australia will be subject to appeal. I think it is worth emphasising that the impact of Work Choices was felt most acutely by the most vulnerable workers in the Australian labour market, including women, young workers and the low paid. In the first two years of Work Choices, 62 per cent of minimum wage workers suffered a decrease in their real wages.

I would like to remind the chamber of the case of 17-year-old Billy Schultze, a console operator, who along with more than 60 other workers and as part of a BHP takeover of service stations was required to reapply for his position and sign an AWA that cut his pay by $2 per hour as a condition of his employment. New definitions in the bill for ‘transfer of business’ result in broader protection for employees’ terms, conditions and entitlements in the event of a takeover, offering better protection for workers like Billy.

Work Choices—and this again has been much discussed this afternoon—removed all unfair dismissal rights for employees in businesses with up to 100 workers and, for other employees, the employer had only to demonstrate operational reasons to remove any challenge or right of redress. This resulted in clear hardship and real job insecurity for Australian workers, and their families, who could then be dismissed at any time for any reason. In its report on the impact of Work Choices on South Australian workplaces, the Industrial Relations Court of South Australia observed:

… there is a pervasive sense of job insecurity as a result of Work Choices, particularly in lesser skilled and lower wage areas of employment. A substantial cause of this insecurity is the exclusion of many employees from any access to an unfair dismissal remedy.

This bill restores the right to due process in the event of harsh, unjust or unreasonable dismissal for the more than four million Australians excluded under Work Choices. However, protections for small business have been put in place and they will be assisted by the Fair Dismissal Code, which, if followed by the small business owner, will ensure that dismissal is not unfair. The clear, easy steps and guidelines will allow clear and easy administration for small businesses. A lot of the fear about unfair dismissal clauses amongst small businesses relates to the administration of quite complex legislation and uncertainty about how to proceed rather than to unfair dismissal itself.

To summarise, early in 2007 the Prime Minister committed to consign Work Choices to the ‘dustbin of history’. We are here today to honour that commitment. The Fair Work Bill strikes the right balance for contemporary Australian society and returns the pendulum of industrial relations back to the centre, where it belongs. As we face an unprecedented global economic recession, an industrial relations system that provides certainty of legislative framework for Australian business and security of pay and conditions for Australian workers is an absolute must. It is worth noting that annual productivity growth averaged only 1.2 per cent while Work Choices was in operation compared to the annual average of 2.3 per cent over the previous two decades. This adds to the weight of international evidence linking collective agreement making to improved productivity.

In 2007 Harvard economics chairman Richard Freeman criticised the Work Choices legislation as unfair, destructive of productivity gains and unlikely to reduce unemployment. As reported in the Age on 12 September, Freeman believed:

… reducing the rights of workers would force down wage rates, increasing the dependence on welfare benefits, which would then also be cut. Then you get a genuinely divided society …

Freeman argued that creating jobs in a modern economy was not done by lowering wages of vulnerable people. He said:

… you need to improve the quality of skills, ability of firms, and workers who are key assets, to work together to make better products.

This bill finally consigns the philosophy of Work Choices to the dustbin of history by acknowledging that the way forward is not to rob Australian workers and their families of their pay, rights and conditions. It marks the beginning of a new Australian workplace relations system for employers and employees, providing certainty and stability during these difficult economic times as well as a strong foundation for flexibility and productivity for a prosperous future. The Australian people gave this government an overwhelming mandate at the last election to rip up the Work Choices legislation and replace it with legislation that restores the balance to Australia’s industrial relations landscape. This legislation honours our election commitments and restores in our workplace relations system the values inherent in the Harvester judgment. It sees the return of a fair go for all Australians at work. I strongly support this bill.