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Wednesday, 8 December 2004
Page: 139

Mr ANDREN (7:13 PM) —The Workplace Relations Amendment (Agreement Validation) Bill 2004 stems from the High Court's decision, as we have heard, to rule out the inclusion of a clause that provides for the employer to collect bargaining fees from non-union employees in a certified agreement between management and employees at Electrolux, known as the Electrolux decision. Given Electrolux's presence in my electorate, I have a special interest not only in this matter but in the industrial relations processes within that company. I have a continuing interest in seeing that those recently retrenched workers at Electrolux in Orange are treated fairly in obtaining post-Electrolux retraining and re-employment. Some of them who have worked at the former Email and then Electrolux for up to 30 years are going to find it very difficult to re-enter the employment market in the central west. I have called on the Prime Minister and the government to consider some special packages for those people, in line with those offered to the Mitsubishi workers in Adelaide.

It has been argued that the employment situation is far more benign in the central west, but I would argue that the special circumstances of these particular employees demand special processes similar to those afforded the Mitsubishi workers to absolutely ensure that they are not severely disadvantaged by their retrenchments. The fact that they are being, if you like, dribbled out into the employment market diminishes the immediate impact of mass retrenchments but, nevertheless, there are going to be people who will fall through the cracks unless they have special assistance that, to this point, has not been forthcoming to a sufficient degree.

The Workplace Relations Act states that an agreement can be certified only if it is about matters pertaining to the employment relationship between employers and employees. This is the basis for the court's decision. Bargaining fees charged to non-union employees by a union for its negotiating work are not regarded as part of the employment relationship, I might add, whatever their merits for meeting legitimate negotiating costs from which all employees benefit. The High Court decision also means that any certified agreement that contains a matter that does not pertain to the employment relationship is invalid, and that any industrial action taken in support of that proposed agreement which includes a non-pertaining matter is not a protected action and, therefore, is open to challenge in the courts and the Industrial Relations Commission, which can result in civil penalties such as fines and compensation or liability claims.

Protected action is industrial action that occurs only in the designated bargaining period to reach a certified agreement—that is, in support of employees' claims for inclusion in that agreement. The court decision did not specify what other types of matters might be designated as not pertaining to the employment relationship and therefore not able to be included in the certified agreement, which means that any number of existing certified agreements pre 2 September 2004, when the High Court decision was handed down, may now very well be regarded as invalid. If a certified agreement is determined to be invalid it opens up the possibility of industrial action, because an invalid agreement would have to be renegotiated and industrial action is protected during negotiation of a certified agreement. This is the uncertainty that the government is wishing to address with this bill: the invalidation of current agreements and the potential for industrial action as a result.

The bill validates all certified agreements made prior to the Electrolux decision by making any matters that are not pertaining to the employment relationship unenforceable. So, rather than validating the whole of current agreements that have been reached and certified in good faith, it removes the non-pertaining matters to ensure the rest of the agreement remains valid. The government is seeking the best of both worlds to protect against industrial action and remove certain aspects of agreements—like training leave for union delegates, right of entry for union officials, deduction of union dues, the hire of casual workers, non-union contract employees and labour hire—that have been agreed to by both parties. Certified agreements that have been negotiated in good faith and where the terms have been agreed to by both parties—whether they are considered to be within the employment relationship or not—should be validated for the remaining period of the particular CA.

Both the ALP and the Democrats have moved amendments which will basically validate all current agreements in total, allowing the agreements to continue until expiry. This will determine that any industrial action that may have taken place in the course of reaching the agreement will remain protected. If the amendments are not accepted, at any time in the future if another particular aspect of a certified agreement is found to not pertain to the employment relationship, then the whole agreement and any other agreements will be deemed invalid. If industrial action was undertaken in the course of negotiations this action could be challenged and, if found to be unprotected, civil penalties could be imposed.

So I support the inclusion of the proposed amendments. They will provide certainty across the board with agreements and will validate complete agreements rather than quarantine, if you like, the non-pertaining matters as unenforceable. As for future agreements that may be found to contain other matters that are non-pertaining to the employment relationship, the parliament should be addressing this uncertainty by determining that when found such matters are made unenforceable but the agreements remain valid, as suggested in the Bills Digest. It would apply the same treatment to future agreements as is being applied by this bill, in its unamended form, to pre-Electrolux certified agreements.

It is difficult to ensure certainty over what can or cannot be included in a future certified agreement without a comprehensive list of matters that do not fit within the definition of an employment relationship or until the courts or the AIRC have ruled particular matters out of the employment relationship, which could be many years in the process. So, in order to address the immediate situation and provide comprehensive validation of existing certified agreements, I support the amendments to the bill. Because of the High Court decision the need for the bill is obvious, whether the amendments are accepted or not, but I believe that without the amendments that have been suggested by the Democrats and the ALP the bill remains inadequate.

The member for Gorton made some valid points about AWAs and their lack of take-up in the marketplace, and some other points about representation of employees under a rapidly deregulated workplace. I must put on the record my grave concerns about exploitation in the cleaning industry—especially of female workers—where contracts are provided by fax, spurious reasons are given for termination and no provision is made for proper entitlements. I have referred these particular cases to the federal government and, in one case, the state government for clarification of some of these matters. These contractors are working for some of our largest retail organisations. As I said, I am seeking more information about these practices and will have more to say when I have that information. But I would like to underline the dangers of too much flexibility in the workplace, where the negotiating playing field is so unlevel. With those comments, I commend the bill to the House, particularly with those added amendments if the government is agreeable.

Debate (on motion by Mr Dutton) adjourned.