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Thursday, 2 December 2004
Page: 56

Senator NETTLE (1:11 PM) —The Workplace Relations Amendment (Agreement Validation) Bill 2004 is the government's response to the High Court's decision in the Electrolux case, but the bill fails to adequately address all the uncertainties that that decision has raised. The government could do more to address these uncertainties, but it has decided to leave these decisions and the sorting out of these matters to the courts and the Australian Industrial Relations Commission. The sorting out of these uncertainties could take many years.

The High Court's decision in the Electrolux case in September this year raised three significant questions about the scope of certified agreements and what they may contain. The Workplace Relations Act provides that an agreement can be certified only if it is `about matters pertaining to the employment relationship' between employers and employees. The court found that a provision for employers to collect bargaining fees on behalf of a union is not a matter pertaining to the employment relationship.

The court also ruled 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 a proposed agreement which includes these non-pertaining matters is not protected industrial action and is therefore open to civil sanctions. The court did not say exactly what other matters might not be permissible in a certified agreement—what it perceives to not pertain to the employment relationship—although there has been speculation that it could extend to dealing with the use of casual workers, labour hire, non-union contract employees, right of entry for union officials, deduction of union dues and training leave for union delegates. This means that any number of existing certified agreements may now be invalid.

The government claims to be addressing this uncertainty with this bill, but this is not the case. This bill simply guarantees that all certified agreements and all AWAs, Australian workplace agreements, that were in place before the Electrolux decision are valid, but any matters within those agreements that do not pertain to the employment relationship are unenforceable. That is manifestly inadequate. People need to know that all of the provisions in the agreement that they make in their workplace are valid. Unions, employees and employers also need to know what issues the government and the courts believe do not pertain to the employment relationship.

The government could have brought to parliament a list of matters that they believe do not pertain to the employment relationship, but they have chosen not to do this. The failure to specify the scope of non-pertaining matters disadvantages unions and employees who may wish to take industrial action in pursuit of a certified agreement. This is because such industrial action, as I said before, would not be protected if the agreement contains non-pertaining matters, thereby opening unions up to the threat of legal actions and penalties. There is no certainty provided for employees and their unions, and the government have offered nothing in this bill to take the guesswork out of the task in the hands of those groups.

The government could have ensured that all action taken in support of claims for a certified agreement, whether it contained matters pertaining or not pertaining to the employment relationship, was deemed legal. The government could have, as the Australian Council of Trade Unions has suggested, amended the Workplace Relations Act to:

Remove the requirement for industrial disputes and certified agreements to be about matters pertaining to the employment relationship ...

The Greens support the ACTU's view, set out in its submission to the Senate inquiry into this bill:

Where a union and an employer have reached agreement on matters which they believe are relevant, the role of Government should be to ensure that these agreements are valid and enforceable.

In its submission to the inquiry, the CFMEU construction division states that this bill, by validating only part of an agreement negotiated before the Electrolux decision, effectively imposes an outcome on parties to a negotiation that the parties themselves might not have agreed to. This means that the parties cannot renegotiate any `non-pertaining matters' and have them included as part of their agreement with rights of enforceability.

This is unsatisfactory in the view of the Greens and it is contrary to the intent of enterprise bargaining. The Greens agree with the CFMEU, who said in their submission:

If pre-Electrolux agreements are to be validated by legislation they should be validated to the full extent of their existing terms—

—that is, the basis on which they were negotiated between the two parties involved. Nor has the government dealt satisfactorily with the status of agreements made after the High Court decision. These may be invalid because they contain a single `non-pertaining matter'. The government has offered no guidance on the scope of such matters. The government might think that it is constraining unions and employees and further undermining collective bargaining and the ability of working people to protect their wages and working conditions to the advantage of business. But business also appreciates certainty, and most employers will not welcome the continuing uncertainty that this legislation creates.

This legislation is a poor effort in dealing with industrial relations issues from a government that claims industrial relations is its top priority during its fourth term. It raises the question: what can we expect from the Howard government on industrial relations in the coming years? We can expect the government to drag out every ill-conceived industrial relations bill it has tried and failed to secure parliamentary support for in the past nine years. The list is long because the Senate has had the good sense to reject much of the government's regressive and divisive industrial relations agenda, such as the now infamous proposal to permit workers of small businesses to be sacked with no right of appeal. This has been rejected 41 times by the Senate, yet today we saw the Minister for Employment and Workplace Relations reintroduce this bill. The government's agenda also includes reducing the number of matters that awards and agreements can cover, further restricting the right of employees to take industrial action and abolishing the right of small business employees to redundancy pay. Then there are the new proposals that the government has flagged, like placing so-called contract workers and small business—the largest employer—outside of the industrial relations system.

Let us have a look at what these proposals would mean for Australian workers. There is no case for removing the right to appeal an unfair dismissal—the right to appeal having been unfairly sacked by one's boss. Such a measure would have harsh consequences for working people. Imagine a young woman working in a tearoom who raises an issue about being bullied by her boss. She is then sacked and has no right of appeal. Or imagine a mechanic who turns up a garage to work one day and is told, `You're sacked.' He is given no explanation, there is no discussion and he has no right of appeal. Or imagine the real life example of a child-care worker who was sacked four days after requesting maternity leave. The 25-year-old woman, pregnant with her first child, was represented by the Liquor, Hospitality and Miscellaneous Workers Union. They took action open to them at the time before the New South Wales Industrial Relations Commission and were awarded the maximum 26 weeks pay. In ruling last month, the commissioner, Ian Cambridge, said that the fact that the employer was a small business was no excuse for the company's conduct. He said:

It is difficult to contemplate the prospect that an employer acting with such abhorrent disregard for the circumstances of a pregnant woman might somehow avoid responsibility for such actions because it is a small business.

But, under this government's unfair dismissal bill, this woman, pregnant with her first child and awarded the maximum 26 weeks pay by the New South Wales Industrial Relations Commission, would be prevented from seeking any redress from being unfairly sacked from her workplace. This is not the fair and just workplace environment that Australians want.

The government wants to remove the right to redundancy pay for small business employees, arguing that small business is a special case. But the Australian Industrial Relations Commission in its ruling on this matter earlier this year capped the amount of redundancy payable at half that for larger businesses—eight weeks pay as opposed to 16 weeks—and it retained a provision for small businesses in genuine financial difficulty not to have to pay redundancy pay. If the government's policy becomes law and an employee who has worked for 20 years for one small business employer is made redundant, they will receive nothing.

The government also wants to restrict the right of union organisers to enter workplaces to hold meetings and assist workers—meetings about occupational health and safety issues, meetings about a whole range of issues that the employees in a workplace are interested in discussing collectively with their union. The government wants to tighten secondary boycott provisions that penalise unions and workers who take action in support of workers in other workplaces. For example, if there has been a death as a result of negligence on one building site and people at another workplace want to stand in solidarity with the death that occurred across the road, the government wants to tighten these provisions so that people are not able to show that solidarity or the need to improve the occupational health and safety issues in their own workplace so that they do not face similar circumstances. The government also wants to further restrict the right to strike by outlawing strikes in essential services, and we have seen some indication that the government intends that to include nurses, academics and a range of other members in public service. It also wants to increase the use of independent contractors to undermine collective bargaining.

From July next year, the government will control the Senate. The question is: will the coalition be seduced by big business and strident right-wing advocates of an industrial relations free-for-all who are already pressing for even more obnoxious measures, such as removing minimum wage setting from the commission and allowing parliament to regulate pay rates? Industrial relations experts John Buchanan and Ron Callus of Sydney University, wrote in the Sydney Morning Herald on 20 October that employers and managers already have the upper hand in the employment relationship. They said:

Australian employers already have one of the most favourable labour law environments in the world. Their freedom to choose whether to bargain with their employees and to lock them out exists in no other industrialised country. Their power is set to increase as that of unions and industrial tribunals falls, dismissing workers becomes easier and contractor forms of employment are nurtured. Power would also be centralised in Federal Parliament at the expense of the states and tribunals.

Business, including small business, is best assisted by an industrial relations framework that promotes and supports cooperative relationships with unions and employees—not confrontation, discrimination and exploitation. An independent body to help conciliate and, where necessary, to arbitrate disputes is in the interests of all players in the industrial relations system. But the Howard government cannot see this because it is distracted by its unrelenting desire to crush unions and collective bargaining in preference to requiring each individual employee to look out for themselves, most of whom have neither the wherewithal nor the bargaining power to strike a fair deal.

The government refuses to accept the pivotal role that unions have played and continue to play in a fair society and decent working environments. As former ACTU president and former Prime Minister Bob Hawke said last week, unions have much to be proud of and every working person is indebted to the union movement for their wages and working conditions. In his speech Mr Hawke said, `No other non-government organisation has made such a lasting contribution as the trade union movement.' Instead of undermining the role of unions, the government ought to be directing its efforts to addressing the many longstanding, serious problems that beset the employment market and working lives, such as the continuing expansion of insecure, low-paid work that deprives people of basic conditions such as sick pay, holiday leave and the opportunity for advancement, and such as the rise of overwork. An International Labour Organisation report last month found that one in five employees in Australia works at least 50 hours a week.

The government should be addressing issues such as the poor distribution of paid work that is leading to whole areas of disadvantage in cities, where many families have no wage earner. The government should be addressing a taxation system that continues to direct more and more benefits to high-income earners instead of tackling the problem of high effective marginal tax rates for people moving from income support to paid work on low wages. It should be tackling the absence of a proper paid parental leave scheme in this country and the insufficient child-care places.

Instead of addressing these issues, the Minister for Workforce Participation is off in search for new draconian anti-worker and anti-union legislation that he can introduce into parliament post July next year. I hope that across Australia trade unions are preparing with other members of the community to defend the interests of working people from the government's attacks. I know that earlier in November the first mass meeting called by the Electrical Trades Union in Victoria to discuss the impact of the Electrolux decision, this bill that we are dealing with now, and how the union would deal with that issue attracted around 4,000 people.

The ETU has negotiated with employers an industry-wide new certified agreement—another outcome for fairness of conditions and certainty for employers that the Howard government will try to prevent in future by abolishing industry-wide or pattern bargaining. The community wants fairness and cooperation, not exploitation and confrontation. Fair-minded business people want cooperation, not exploitation and confrontation. Working people want fairness and cooperation. But the Howard government is bent on exploitation and confrontation, as we saw down at the docks during the MUA dispute, because it wants to deliver for the big end of town at the expense of working people, their families and their unions, and at the expense of constructive relationships between workers and businesspeople. The government feels that it needs to deliver for what it believes is its constituency, the big end of town, regardless of the impact that will have on the rest of the community.

For nine years the Senate has prevented the most regressive elements of the government's policy from becoming law in industrial relations. From next July this important check on government will cease because the coalition will be able to pass legislation in its own right. But the Greens will continue to work in the parliament, in workplaces and in the community and with unions and working people to defend the right to collectively bargain and to defend the right to fair treatment, the right to safe workplaces and the right to fair wages and conditions. We will work for an industrial relations system which promotes fairness and cooperation over this government's agenda of exploitation and confrontation.