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Wednesday, 31 May 2000
Page: 16715


Ms GILLARD (5:33 PM) —In addressing the Workplace Relations Amendment Bill 2000 and industrial relations debates generally in this place, it is easy for the participants to become transfixed by the technical detail. It is my intention today to address some of the matters of technical detail in this bill, but I want to start by actually painting the picture of some of the principles that drive this area of public policy and some of the basic principles which are offended by this particular bill.

Since 1904, since the Harvester decision which defined the basic wage in Australia, we have had a fundamental industrial compact in our society, and that compact has been built around the notion that labour is not like every other commodity. It is not the same as any other commodity, and should not be subject to the same free market rules as every other commodity. We have not allowed the price for labour—that is, wages—to be simply determined by the forces of supply and demand. Our society has recognised that wages were special for two reasons. Firstly, while wages are the price of labour, they are also the determinant of our standard of living; and we did not want workers to be condemned to living in poverty. Secondly, we recognise that in the market for labour, when individual workers try to bargain with their employers, the worker will always be in the weaker position. We were not prepared to accept that employers should be allowed to use their market power unfettered and exploit their workers.

Since Federation, we have been prepared to intervene in the market for labour and to ensure that working people have access to basic protections and conditions. Historically, this was done by a highly centralised system in which an industrial umpire prescribed minimum wages and conditions to create a safety net in the market for labour, to ensure that there was no rampant exploitation of workers. In the past few decades, as our economy has modernised and our world globalised, it has become apparent that some of the rigidities of this centralised wage fixing system have been causing inefficiencies, and it was determined firstly by a Labor government to facilitate the development of an enterprise bargaining system with a safety net still in place. In making this move, Labor recognised that there was another way to facilitate the protection of working people in industrial relations other than simply central regulation, and that way was by facilitating collective bargaining in which the very combination of workers into a collective strengthens their hand in dealing with employers and means that the deals that they strike with employers will be fairer than the deals that an employer would have struck with a worker who was bargaining alone.

For an endorsement of those sorts of principles of the very special nature of the market for labour, one does not need to turn to the trade union movement or the Labor party or the churches or, indeed, any other of the progressive forces in our society or those interested in the social policy area. One can in fact turn to that well-known group of socialists, the National Competition Council, who have had cause to look at this area when reviewing the Trade Practices Act. When it was put to the National Competition Council that the Trade Practices Act, in ensuring fair markets, also ought to be applied to the market for labour—because there was nothing special about the market for labour, and indeed that submission was put to the National Competition Council by this current government—the National Competition Council rejected that submission and defined in its recommendations that there was something special about the market for labour which justified further interventions into that market than the National Competition Council would ordinarily see as appropriate.

In particular, the council said that its reasons for coming to that conclusion were the primacy of the industrial relations framework in labour market relations, the need for Australia to comply with its International Labour Organisation treaty obligations and the fact that there needed to be certainty in employment agreements and arrangements and that the course that the government was pursuing would not be one that would enable such certainty. So even institutions that are fundamentally concerned with the operation and nature of markets are saying to us, as a broad public policy principle, `There's something very special about the market for labour and it needs to be treated differently.' Yet since this government have come to office we have seen in each of their industrial relations initiatives—in both the ones that have succeeded in being translated into legislation and the ones which have failed—that, at base, they really do not accept that there is something special about the market for labour. What they want to do, stripped away of all the rhetoric, is create a market for labour that is like any other market; a market in which individual workers deal directly with their employers and effectively would be price takers: they would take whatever price for their labour they could get. It would be too bad, from this government's public policy point of view, if that meant exploitation or poverty. This government is not concerned about those questions; it is concerned about an ideological agenda applying a pure market form to the market for labour.

In order to achieve this end we have seen the government move to strip out from the current market for labour each of those social protections that have been put in there over the decades since Federation. We have seen the government move to attack each of the fundamental things that have been put in there to ensure that there is some fairness in our labour market. They have gone on an offensive against the industrial umpire—the commission in its various guises. They have done what they could to rip away the safety net, the product of years of centralised protection of workers' conditions and entitlements, and now they are moving even further down the road of stopping workers from bargaining collectively. So, really, what we have heard is the government saying, `You can't have centralised protection any longer. We're largely going to take that away from you with a view to taking it totally away from you over time. We don't want you looking after yourself in the marketplace by combining with other workers in effective combinations. We're going to try to take that away from you, and we're only going to be satisfied when we have achieved a system whereby each worker individually is left to their own devices, left to what they can get in an individual bargain with their employer.'

This bill is another step down that path. This bill purports to be about pattern bargaining. First of all, most people would not know what pattern bargaining was, and for good reason. Pattern bargaining is viewed as a circumstance where employers or unions pursue industrially similar objectives across a range of similar workplaces. When you say it like that it does not really seem in any way odd, does it? In fact, it seems to stand up to scrutiny that, with some site specific variations, workers engaged in similar enterprises, doing similar work, would by and large enjoy similar wages and conditions. That seems an intuitively correct proposition from our ordinary experience of life in the labour market. Or perhaps it is made clearer if you put it the other way round and say, `Wouldn't it be a very odd result if workers doing similar work in very similar enterprises'—clothing machinists, say, who sew up ladies fashion wear—`were paid wildly differently or treated wildly differently? Wouldn't that be a very odd result?' I think most people would look at that circumstance and say, `It's not only an odd result; it's also an unfair result. It's a result that hardly seems right.' And yet what this legislation is telling us is that from the workers' side it is inappropriate, it is wrong, indeed it is unlawful, for workers engaged in similar enterprises, doing similar work, to bargain collectively for broadly similar outcomes, but it is all right for employers to do it. Interestingly, when you look at this legislation not one part of the prohibition against pattern bargaining is directed at employers; it is all directed at workers, at unions. Employers are left alone.

We know that employers pattern bargain. We know that there are employer industrial organisations. We know that employers in industries meet and confer and come up with broad strategies as to what they want to industrially pursue across their workplaces. And that is okay—that kind of pattern bargaining by employers is okay. One of the great pattern bargainers in Australia—and I feel that we should mention it, given that the state of Victoria comes in for a lot of discussion in this place by the current Minister for Employment, Workplace Relations and Small Business; the Victorian industrial relations scene is something that he often is heard talking about—was the Kennett government. Let us talk about the Victorian industrial relations scene when the Kennett government was in office. The Kennett government used to produce identical individual employment agreements, distribute them throughout the public sector—different departments, different agencies, different workplaces—and then say to the workers who received those agreements, `Sign it. The only thing that's variable is the schedule at the back.' And when you looked at the schedule at the back, that was where you filled in your name, your address and your classification. That was the only thing that marked one agreement from another. One would say `Fred Smith' and one would say `Jill White'. That was the only variation. A great pattern bargaining system.

There is nothing in this legislation that would prevent a conservative government or an employer or a group of employers engaging in that conduct—that is fine. Any industrial relations action taken in pursuit of it is left unprotected and therefore liable to all the sanctions available against industrial action under our industrial law. What is unlawful is for workers to move beyond their single business enterprise, to form a collective with workers in other enterprises and to commonly pursue together an industrial outcome.

That is pattern bargaining. Pattern bargaining under this legislation is not protected industrial action, so if you engage in conduct like that you do not have the protections for industrial action that are offered in other circumstances under our industrial law and you will be liable to all of the sanctions, fines and penalties that the law can throw against you. When we look at it we can ask, `What is this really about? What it is clearly about is breaking down the bargaining units—the way in which workers can bargain—to smaller and smaller units. This government does not want workers using their collective strength to bargain industry wide. It wants to break down the collective unit that workers can use to the smallest possible fragment—and the smallest possible fragment, as defined by this legislation, is a single enterprise.

This legislation is so offensive that you need to look to Pinochet's Chile to find an industrial equivalent. We find that this very offensive legislation is being justified as needed. The Minister for Employment, Workplace Relations and Small Business in question time almost every day tells us about Campaign 2000 in the manufacturing sector in Victoria and says that this legislation is needed to answer the challenge laid down by Campaign 2000. Let us just think about how offensive this legislation is and whether legislation so offensive could be justified by any industrial threat, and then let us think about what industrial threat is posed by Campaign 2000.

Campaign 2000 is the pursuit by a number of unions in the Victorian manufacturing sector of a framework agreement. It does not preclude in any way site-specific deals being done under a broad framework agreement. The framework agreement being pursued deals with matters like long service leave, trust fund protection for workers' entitlements, training standards, portability of skills, and the like—matters which undoubtedly have industry-wide ramifications. It should seem not a problem in any way that for those sorts of conditions that have industry wide ramifications there ought to be an industry-wide process of bargaining. What is wrong with that? Of course, there is a common wage claim too. That cannot be denied. There will be a common percentage wage claim. But then one wonders why in this environment employers—who already have at their disposal a piece of legislation in the Workplace Relations Act which strengthens their hand considerably and gives them fundamental advantages—cannot meet that industrial challenge using current tools.

One of the great concerns that I have, when you track the movement in industrial relations over the last few decades as we have moved increasingly from a centralised wage fixing system to a collective bargaining system, is the double standard that is brought to bear by employers as we have made that move. We were told the centralised wage fixing system was no good, was too rigid, did not allow site-specific arrangements, and everybody would be better off if people went out into the industrial relations field and bargained for outcomes. Then unions go out into the industrial relations field and bargain for outcomes—as they have been urged to do—and when they do it successfully then we are told, `No, that is no good. We now have to change the way in which you can bargain. If you are actually in this new environment bargaining for an outcome and doing well at getting the outcome, then we are going to change the rules to make it more difficult for you to do well.' What do you want?

All you can conclude is that there is no scheme of industrial relations that allows people fairness and equity that is going to be seen to be satisfactory. A centralised system that promises fairness and equity is rejected out of hand. A bargaining system that allows workers to genuinely combine and bargain is rejected out of hand. And what we have is legislation like this driving downwards the ability of workers to bargain by driving downwards the bargaining units which they can use, so they cannot use industry wide bargaining units, cannot use multisite bargaining units, cannot use a combination of workplaces as bargaining units. What they have to do is just bargain within the single business. It seems to me that, really, that cannot be defended in any way, shape or form as a fair framework, particularly when the strictures against pattern bargaining are being applied only on the trade union and worker side and not on the employer side.

If there is any doubt about the biased nature of this legislation just in respect of pattern bargaining—if the pattern bargaining scheme predicated by this piece of legislation was not enough to convince people of how unfair this piece of legislation is—we also find that there is a prescription for so-called `cooling-off periods'. Of course, we know that this minister's legislation is generated by not only his department but also the ministry for truth. We had the `more jobs, better pay' bill; we now have cooling-off periods. Of course, cooling-off periods are not cooling-off periods at all. Cooling-off periods are about a setting where there is protected industrial action in progress—so people are doing what they are supposed to do, we are told, under the system; that is, they are engaged in a round of bargaining—and in that round of bargaining this piece of legislation says that there will always be a facility, basically, for the employer to go and get that action stopped, to get a so-called cooling-off period.

So instead of a fair bargaining system letting everybody use their strengths to get to the best possible outcome they can—and employers do use their strengths in that setting; they do things like lock workers out when unions or workers are in combinations where they are using their strengths, which might be the withdrawal of their labour through strikes or other forms of industrial action—this provision in this legislation allows employers to get that halted, to get the necessary reprieve, which means that they can then go back into the field strengthened by the fact that the industrial action against them was forced off. This is another quite nakedly biased provision in this bill, all about making sure that when workers bargain they do not get to do that with the industrial strengths that they would otherwise have available to them. They are fundamentally weakened, and once fundamentally weakened are then sent out into the field to bargain, not before.

Lastly, I would like to address the provisions of this bill that go to the question of the jurisdiction of the Federal Court—and I will do it very briefly—because I think, once again, that this is a fundamental unfairness. Currently, we have a situation where the Federal Court, in dealing with industrial matters, is able to deal with questions where employers have gone to state courts. So we have always had this duality in the industrial relations system. You have the Federal Court, you have state courts, and you can have inconsistent pieces of legal action on foot that are used as a tactic by employers to put pressure on workers. The Federal Court itself has said that the use of that tactic by employers can be viewed as coercive. Because of that, and because of his hatred of the Federal Court stemming from the MUA case, this minister for industrial relations in this bill is contemplating a situation where you could have a multitude of actions on foot in relation to an industrial dispute and an employer could nakedly forum shop to get the best possible deal. (Time expired)