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Tuesday, 10 March 2009
Page: 1102


Senator LUDLAM (7:35 PM) —It is with a certain apprehension that I rise tonight to speak on the Fair Work Bill 2008, given how central a role industrial relations played in the 2007 election campaign and the demise of the Howard government. It is not surprising that many Australians and many workers have eagerly awaited this bill. Given the ALP’s critique of Work Choices and its promise to rip it up, not to mention the party’s history, the bill is surprising because it does not actually rip up Work Choices at all. It also does not restore Australia’s industrial relations system to its rightful place.

Our institutions are not being strengthened, the language is being softened where clarity and precision are needed, and important principles are being watered down. For instance, it is not enough for us to take International Labour Organisation standards ‘into account’. Australia must comply with these standards and we should comply with them proudly. Those international standards were forged over decades with Australian participation and, at times, with Australian leadership. If we want to be a creative middle power and if we want to recover our reputation at the United Nations, which fell into tatters after the Howard years, complying with international obligations is not something we should just ‘take into account’; it is something that we should do.

The Greens have provided very detailed arguments and 11 recommendations in a minority report on this bill. We state that the bill overall is an improvement on Work Choices. Standing here tonight is something of a bittersweet experience for me. I immediately give credit to Senator Rachel Siewert and her staff, who provided a meticulous critique at the time Work Choices was passed into law late in 2005. I was working for Senator Siewert at that time. Members and senators may remember that on the night it was passed the gallery was full, a huge storm was ripping into Canberra and the power failed in the chamber for a time. It was a fairly dramatic moment. It has stayed with me since then. It was a huge cause of the demise of the Howard government, and we should not forget that. The fact that we were able to state in our minority report that the bill is an improvement on Work Choices unfortunately does not say very much. Of course it is an improvement. It could barely have been any worse. The question is: is it enough of an improvement and can it be strengthened? I will briefly pick up on three issues of concern that are about the long-term consequences of the legislation that we are debating tonight.

Former Prime Minister Howard’s attack on workers, their representatives in the union movement and our industrial relations institutions was savage and it was ideological. Howard inappropriately used this parliament to demolish core workplace standards and to limit the award system. I say ‘inappropriately’ because parliament really should not necessarily be setting core labour standards. A properly resourced independent authority should be there to prevent these issues being subjected to the rise and fall of political parties. This Fair Work Bill seems to continue this very dangerous trend. I believe there are consequences when parliament sets core standards such as these. They can become politicised and they can fail to keep up with movement and thinking in the community. An example is that in 2004 the Industrial Relations Commission granted redundancy pay to employees of small businesses. This provision was removed by Work Choices and has not been restored under the Fair Work Bill.

A century before Work Choices was rammed through this place, in 1904, very soon after Federation, the parliament delegated responsibility to a specialised and expert independent authority—the Commonwealth Court of Conciliation and Arbitration. That was not subject to party political considerations or pressures of the day. Higgins called this the ‘new province for law and order’. Our deputy sheriff Howard thought he knew a bit more about law and order. He threw out the comprehensive awards that had a lot of detail built up over a long period of time about the nature of the industry and the occupation concerned, a lot of specific insights into exactly what various professions entailed and how careers were to be advanced through the classification structures. All of these details changed over time as industries were mechanised or computerised or materials and workplaces changed. The award system provided the flexibility to be updated as those changes took place.

Setting these labour standards in legislative stone takes away the flexibility and independence that our industrial relations system in Australia was justly famous for. Letting politicians determine the National Employment Standards and letting politicians limit the award system is not ripping up Work Choices and is not providing stability and certainty to the market. It is in fact subjecting these standards to the political cycle. That is what Work Choices did. Work Choices assaulted an appropriate separation between the political process and the industrial relations machinery in this country. The Fair Work Bill should restore the separation and remove the role of politicians in setting these National Employment Standards.

My second concern regards our system actually being effective and being able to settle disputes. In the Fair Work Bill we have last resort arbitration in the collective-bargaining provisions and also in the low-paid bargaining stream. So far so good. However, there remains no means of effectively resolving workplace disputes unrelated to bargaining. Disputes about the application of the National Employment Standards, awards or agreement provisions are unable to be finally determined by an independent arbitrator unless there is consent by both parties. What the pre Work Choices system provided was equalisation and access to justice through a grievance procedure where impartial decisions could be made. That was much more than mediation because it was capable of determining, it was effective and the system could settle the case. Dispute settlement should be in every agreement—that is, mediation and conciliation and, if necessary, determination by the commission or some other entity. The Constitution does not talk about the mediation of disputes and it does not talk about conciliation only; it talks about arbitration. As one of the witnesses said in the inquiry process, ‘Arbitration is in our view the epitome of the Australian value that we all aspire to, and that is a fair go.’

The final issue I want to raise is in relation to employment rights. Part of the deal negotiated to pass the 1996 Workplace Relations Act was funding for community employment legal services. Most of this money has been subsequently withdrawn. Some services have been able to continue for a short time with funds from state governments. For example, the Employment Law Centre in my home state of WA is currently at risk of losing its state government funding and closing its doors. There is very little point in having enhanced employment rights if you do not know about them and cannot enforce them. The community law centres play a vital role in making all forms of justice, including employment justice, possible and accessible for many, regardless of income. We urge the government to adequately fund community employment law centres, as this legislation goes through.

As Senator Siewert made abundantly clear in her speech during the second reading debate, there is still time for the government to recall what it was like in here on that night in 2005 and to use this chance to firmly reset the balance back in favour of working people.