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Wednesday, 25 June 2003
Page: 17531

Mr BEVIS (5:31 PM) —I rise tonight to speak on the Workplace Relations Amendment (Transmission of Business) Bill 2002. Since it came to office in 1996, the Howard government has introduced what must now be dozens of bills into this parliament dealing with industrial relations matters. Not one of those bills has sought to increase the rights and opportunities of ordinary working Australians—and this bill is no different. I am quite proud to have the opportunity as a member of parliament to stand on occasions like this to defend the rights of employees to the protections they are due. I take great pride in that, and I think it is an honour to be able to do that. I sometimes wonder what it is that motivates members on the other side of this parliament, as they come into this House bill after bill, to support a new legislative regime that will take away from ordinary Australian workers rights and entitlements that they previously had.

This bill deals with an essential factor within the industrial relations system. An effective transmission of business regime is absolutely essential to the integrity of our industrial relations award system and industrial relations bargaining system. You cannot have a bargaining system or an award system if it is not underpinned by a number of things, one of which is that the parties be required to bargain in good faith—another matter upon which the Labor Party has pursued private members' bills and amendments to government legislation in the past which have been denied and opposed by the Liberal and National parties.

Equally importantly, the bargaining system must be underpinned by the knowledge that the bargain, once struck, holds good, that the bargain, once struck, will see the term of that agreement continue without interruption in good faith by both parties. Workers, their representatives and advocates in unions, along with the employers, their representatives and advocates in employer associations, having arrived at an agreement, need to be able to hold that true and fair for the life of that agreement. When a company changes ownership, it does not change that fundamental essential factor which underpins that bargaining system. Without that factor, we do not have a bargaining system. Yet the government proposes to change the law so that the fundamental cornerstone by which the bargaining process operates can be overturned purely by the sale of an enterprise to another company or individual.

What does that mean in practical terms for an ordinary worker and an ordinary employer? For the workers and employers, it means that they go through what may be a prolonged, protracted and occasionally difficult bargaining process to arrive at an agreed position; or, in the case of an award, those negotiations can possibly be agreed or arbitrated, depending on whether or not they are allowable matters under the new restricted powers that this government has tied our Industrial Relations Commission's hands with. But this government is now saying that, after they have gone through that process, if the company changes ownership a week later, the agreement can be consigned to the garbage bin. All of those undertakings, given in good faith by the workers and by the employers, count for naught if there is not an effective and significant transmission of business regime in place.

The fact is that, because we have had many more amalgamations in recent years than we have had in previous decades, because we have had more large companies outsourcing what were once internal operations, this issue has become more prominent in recent times. But it has not been a one-way street. If you look at the cases, you will find examples where the courts have decided clearly in favour of the employer's view of things and you will find cases where unions have succeeded, where the courts have found in favour of a position more supportive of the work force.

It is worth recording that, on a matter of this importance, there were only two Liberal members of parliament who spoke in this debate and whose names are on the speakers list. There are no National Party members' names. There are 11 Labor Party speakers in this debate, because we regard this matter as important. If you looked at what the two government members said, to the extent that they said anything about this legislation, you could be forgiven for believing that the courts have taken a massive leap to the political left and that we have a bench of people who have come out of the closet—the reds under the bed—in our courts and tribunals making decisions that are injuring the efficient operation of companies. Of course, that is not true. A couple of very major decisions were made in favour of employers, such as those in the Stellar Call Centre case, involving outsourcing by Telstra, and the case of EDS, a large computer IT outsourcing contract service, both of which were major victories for the employers. There are other cases you can refer to where unions have had victories.

I can unequivocally say that, during the last parliament, as a shadow minister I had many approaches from union advocates and from employers telling me that the law had to be changed—on the back of the various court cases that had been heard. The employers told me that it had to be changed to make it easier for employers to ditch agreements, and unions told me that it had to be changed to make it harder for employers to ditch agreements. It seemed to me at the time that the courts were making decisions on the facts before them, and whilst I did not personally agree with every decision the courts made I could not see that there was a fundamental flaw in the way in which the system was operating or that there was a structural problem. I was willing to give it time and examine it—but not this government. This government makes no bones about its desire to remove, at every opportunity, the protections that ordinary workers have in our society. In pursuing this bill the government is striking not just at protection for workers but at the very things that underpin the bargaining system and the award system. It is therefore one of the most dangerous bills that this government has sought to pursue.

When this bill, in a slightly different form, was before the parliament in 2001, there was a Senate inquiry to which the major participants in industrial relations made submissions. The ACTU said, amongst other things:

In the event that a transmitted certified agreement is not appropriate to the needs of the workplace, or is in conflict with an already existing agreement, it is open to the parties to agree to vary the agreement or apply to the commission for it to be terminated.

That is an important point that has been skated over by the two government members who spoke in this debate. If a company is sold and there is a legitimate problem with the terms of the old agreement in the operation of the new merged entity—or if there are competing sets of conditions and that becomes a bit of a logistics nightmare for the newly merged organisation—then there are already provisions by which that can be addressed. Yes, it does involve asking the workers what they think about it. That is what this government wants to remove from the legislation. They do not want the workers in that situation to have any say in the agreement and the terms and conditions they will then be subjected to. Even though they may have just gone through a prolonged program of negotiations with their employer and come to an agreement prior to the sale, the government is now saying that their rights should be discarded and they should lose their agreement or award benefits and come under some newly established agreement or award.

ACCI—the Australian Chamber of Commerce and Industry—made the core point in their case along these lines:

The point is that if a new agreement could be developed it would have to pass the no disadvantage test of the two awards but it would be a global test in respect of both work groups ...

I can understand that they would have some concern with that, but it is not a major worry keeping me awake at night. The prospect that the work force would be entitled to argue that their conditions should be no worse than they were under the old employer is not a radical view. Bear in mind that we are talking about a work force that has negotiated an award or agreement using this government's legislation. So they have jumped through all of the hoops that John Howard, Peter Reith and Tony Abbott put in front of them to get an award or an agreement, and this government says in this bill that it can all be taken away from them overnight.

ACCI says, `We think there is a problem because you have to then pass the no disadvantage test.' Well, yes, you would. But if that were the extent of the problem then Labor's amendments to the bill would fix that. If ACCI are genuinely concerned about those matters then they should congratulate the Labor shadow spokesperson for seeking to fix their problem. This bill goes way beyond that. This bill opens up not the trapdoor but the garage door through which you drive the semitrailer. In earlier debates on these matters I made comments that this bill would invite those employers who wished to to contrive sales of their company or parts of their company so that they could get out of the agreements and awards that they had previously entered into under our existing industrial relations laws. That could be done through shelf companies, friendly acquisitions or sister companies that they own. Labor's amendments to this bill resolve that issue, I think.

It is worth noting that my comments last time—which were referred to by the previous speaker—are not hypothetical. I well recall the dispute at Joy Manufacturing down in the Illawarra, where workers were locked out. `Lockout' is the L word that you never hear Tony Abbott talk about. Workers are locked out not for one or two days, as might happen in a strike, but for months on end—as they were at Joy Manufacturing. My memory is that it was a three-month lockout. I went to those workers on the picket line a number of times and spoke to them. They were amazed to discover that they did not all work for the same company. They worked in the same premises, wore the same uniform and thought that they worked for the same company. But when this dispute occurred the company decided, part way through the dispute, that it would negotiate a separate agreement with the employees of each of its shelf companies. At that point the workers discovered that even though they wore the same uniform, turned up at the same office and worked for people who seemed to have the same name, legally they worked for different entities. This company had already structured itself with a range of separate legal creations, each of which employed a different group of workers in the same factory.

It is not far to go from that situation, which occurred only a couple of years ago, to imagine a situation in which workers who had entered into an agreement with one of those companies would find themselves sold to one of the other related entities. At that point, under this government's proposed bill, the workers would be told that their former agreement had no effect. The agreement that they had just negotiated would now be in the wastepaper bin and they would be subjected to a different set of conditions. This is not scaremongering; this is not theory. This is the practice that Joy Manufacturing sought to adopt a couple of years ago in the Illawarra. They are not the only ones; they are not the worst. There are companies that have indulged in worse practices than that.

Mr Fitzgibbon —Imagine if they got their unfair dismissal legislation through.

Mr BEVIS —As the shadow minister at the table, the member for Hunter, points out, were the government to get their unfair dismissal legislation through, not only could they wipe away from those people their entitlements to an award or an agreement they had just settled but also they could sack them without any recourse for the worker—even if it was unfair. This government's package of bills taken together would truly be draconian for ordinary workers. This proposal that the government brings back into this parliament provides a massive loophole through which employers could drive a semitrailer. It would destroy the integrity of the industrial relations award system and also the collective agreement system.

I want to briefly touch on another aspect of the bill that I find alarming. The government proposes that, where a transmission of business occurs, workers will be able to argue their case in the commission. But it then sets in place some restrictions on who can argue on behalf of those workers and in what circumstances. As I read the bill—and I would be interested in the minister's comments to correct this if I am in error—it would require individual employees to identify themselves and to appear in their names or, if they are members of the union and the union appears for them, the union would have to prove that, firstly, it has members and, secondly, that the relevant members have requested the organisation to make submissions for them. That is, the union would have to provide proof, I assume, in an open commission hearing that it had standing in the matter and that it was representing individual employees whose names would be disclosed. This is a matter that we have debated in other industrial relations bills, and the government has been forced to concede the need to protect workers in this environment.

But imagine this scenario, which would certainly occur. Two companies are being merged, which is what would often be the case where there is a transmission of business: a company is being sold to another existing entity and the two are being merged. In that environment there are inevitably a number of redundancies and people who lose their jobs. In an environment in which those workers know that some of them are going to lose their jobs under the newly created organisation, this government says to workers: `If you want to protect the rights that you already had—not to get new ones; just to keep the ones you had yesterday—you have to actually put your hand up and tell the new boss that you're going to fight him in the industrial commission. Or if you're in a union, the union rep has to turn up and say, “I'm here to represent Arch Bevis, who is a member of the union, and here's his written request to me asking me to represent him.”' The effect of that would be to expose every worker to the unemployment line. Every worker who put their hand up would be on the first list of names to go in the merged organisation. If there is protection in the bill, I invite the minister to show me where it is because I cannot see it. That is a major flaw in the bill, and I hope the Senate addresses it, because without that being addressed we are left with workers fully exposed to threat of dismissal and punishment simply for seeking to retain the award conditions that they had prior to a takeover or change of ownership.

I commented at the outset that we have had many bills in this parliament from the Liberal government since 1996. None of them has sought to assist ordinary workers. I want to conclude by referring to the remarks of a respected industrial relations lawyer in this matter. These remarks are in an industrial relations magazine article from October last year entitled `Abandon ideology: Catanzariti plea to Abbott'. It quotes Joe Catanzariti, who is a well-respected and well-known industrial relations lawyer, from an address he gave to the Industrial Relations Society in the ACT last year. I will briefly read from the article:

Joe Catanzariti, national chairman and partner in employment and workplace relations for law firm Clayton Utz, has urged the Federal Government to abandon its ideological position on IR and amend the WR Act so that it fits the practical needs of industrial parties.

Clayton Utz, of course, was the company that put John Howard on its payroll when he was shadow minister for industrial relations. They are not what you would call a left-leaning law firm. The article goes on:

He contrasted the AIRC unfavourably with state tribunals' ability to resolve disputes.

... ... ...

He said that that he had been involved in disputes that the federal IRC had refused to hear, because it lacked the jurisdiction.

“There have been a number of protracted industrial disputes that in a perfect world could have been shortened and resolved had the AIRC had more power and the ability to be more flexible”.

That is power and flexibility that this government has denied it. It then said:

In recent years ... there had been memorable cases “that for want of jurisdiction ultimately required Federal Court intervention”.

He cited as examples Davids Distribution, the G&K O'Connor lockout—one I have referred to many times in this place—and others. He then said:

... that the WR Act has “become as complex as the Tax Act” ... [and] Lamented that under the legalistic regime of the WR Act, many lawyers spent an inordinate amount of time trying to find flaws in notices of protected action, rather than try to resolve disputes.

We have a government that has not only sought to attack workers but also put in place a convoluted and complex set of laws that few in the industrial relations community can deal with now without recourse to expensive lawyers. We do not need the complexities that this bill presents. It has serious flaws. I am concerned that, even with our amendments, there will continue to be flaws and I look forward to its close scrutiny in the Senate. I also look forward to the minister's response to some of the comments that have been raised in the debate on this side of the chamber. (Time expired)