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Wednesday, 31 May 2000
Page: 16723


Mr BEVIS (6:09 PM) —I would advise the member for Bradfield to stick to health. That is something he knows a little bit about, but he has obviously read the script and not examined what is occurring in relation to the Workplace Relations Amendment Bill 2000. He does not understand what has happened with pattern bargaining—not just in Victoria, not just this year and not just with Campaign 2000 and the practice of pattern bargaining adopted by employers and employees and, I might add, encouraged by this government. I recall seeing the Minister for Employment, Workplace Relations and Small Business on television only a fortnight ago, just after this bill was tabled, saying that he supported pattern bargaining. That is what the minister said on TV. So, before members of the government get too excited about following the script, they should take the advice I normally give to everyone dealing with this minister—that is, do not read his lips but watch his hands.

What we have here is Minister Reith's second wave revisited. This is the salami approach to that mammoth document last year that produced widespread reaction in the Australian community and a backlash in this parliament that eventually saw the bill withdrawn in the face of certain defeat in the Senate. So now we have bits and pieces of that legislation returning to the parliament as the government thinks it might have the numbers to see it through the Senate. I want to make some comments at the outset about the process this bill has followed.

This bill was tabled less than three weeks ago, without any prior advice or notice to the opposition. The Senate set up a committee to look at this issue on that day—it carried a motion. In fact, my office had 11 minutes notice of the motion in the Senate. The Senate set up a committee to review the legislation and to take evidence, and it determined that that committee was going to meet for one day, which was last Friday. In fact, under great protest, it met for a little bit longer. But the government is intent on ramming this legislation through without the proper consideration that it would be normally given in this parliament, without the opportunity for Senate committees to conduct their normal detailed analysis and, most importantly, without the opportunity for the Australian public to review it and make a contribution.

Those people in the community who have a view about this and wish it to be known to the parliament had about two weeks to be aware of the bill, to be aware of the detail of it, to formulate their views and to put submissions to the Senate inquiry. They had about two weeks to deal with it. There has been no consultation with the unions. It has been a practice for some time when major items of industrial legislation are brought before the parliament that there is consultation in a tripartite forum where government, employers and employees can sit down, look at the ramifications of the legislation and at least discuss what they think might improve the legislation the government is contemplating. That did not happen this time.

But there clearly was consultation with the government's employer mates. The Australian Chamber of Commerce and Industry managed to get a press release out supporting this legislation on the day it was tabled. The only problem for the ACCI is that the minister's office forgot to update the ACCI press office as to what was going on. As we know, business in this parliament gets delayed from time to time. As the Hansard records, Minister Reith moved the second reading of the bill at 5.01 p.m. on the last day we sat, 31 May. I have the ACCI press release in front of me that came off my fax machine at 15.57 that day. More than an hour before the bill was tabled in the parliament, the ACCI had a press release out saying `Employers support workplace relations bill'. But the bill had not even been put into parliament. It was an hour away from even being tabled and this press release was on my fax machine. I guess there are a couple of explanations for that. One is that the minister and his mates in big business were in cahoots, and I would not be far off the mark if I were to speculate that that were so. I guess the only other explanation is that the people at the ACCI have a divine faith in this minister, and I do not think that that is so.

So we are left with one conclusion. In seeking to bring this bill before the parliament, the government consulted with at least some of its employer mates but none of the usual tripartite interlocutors. It did not see fit to negotiate or discuss with, or even provide an exposure draft to, anybody else. Having failed to do the normal customary things before the bill gets here, the government is now embarking upon a process to ram it through the parliament, to have it dealt with by the Senate as a matter of urgency. The Senate committee is due to report next week, I believe. The government intends that the Senate should fully deal with the matter as quickly as possible thereafter. This is an abuse of process, and it exposes the biased and unbalanced approach that the government, and particularly this minister, has in relation to this bill. But why should this bill be any different from any other industrial relations bill the government has brought forward? The government adopts the same degree of balance to most of them.

I should also make some comment at the outset about the litany of bills this government has foisted on the parliament in the area of industrial relations. Since it came to office, from its first bill in 1996, the government and the minister have proclaimed their desire to simplify the system. On a number of occasions, the minister has referred to how the government has made it easier for people to operate in the industrial relations environment. In the name of simplicity, the government has now amassed nearly 1,000 pages of bills. That is not the explanatory memorandums or the additional material that goes with them; it is just the raw pages of bills that this government has put before us. There were over 700 pages in its two major bills—the 1996 legislation and the second wave. So, in the name of simplicity, this government has forced upon the parliament, and tried to force upon the people of Australia, about 1,000 pages worth of legislation. Thankfully, a good body of it has been rejected by the parliament. But here we are, back again, with the minister having yet another attempt at pursuing his agenda.

Let me say a few things about this bill, why I believe it is fundamentally flawed and why the Labor Party will be opposing it and will be opposing the second reading. This bill seeks to restrict unions in taking action in support of what the bill defines as pattern bargaining. It is important to understand what the bill actually defines as pattern bargaining. If, say, a union makes a claim seeking common wages—everything else could be different; the flexibility in hours and everything that an employer wants—the fact that wages might be the same in two different places constitutes pattern bargaining on the face of it. In fact, the bill goes even further. It refers to pattern bargaining in a situation where a union is making a claim `involving seeking common wages and/or other common employee entitlements'. It then goes on to describe how the commission will deal with that. Basically, any part of the conditions of employment that are common to two places could be held by the commission to be pattern bargaining. The commission under this bill would effectively be forced to say that that could be dealt with in one enterprise alone rather than two, three or 10 and, because they are seeking the same leave, the same pay rate or any other provisions that are the same, an employer would leave it open to them to go along to the commission and effectively force an end to the pattern bargaining that is occurring in that situation.

This bill seeks to outlaw unions pattern bargaining, but it makes no such claim or restriction on employers. Employers are free to continue pattern bargaining—and they do, all the time. Employer associations as a matter of course produce standard templates for their members. That is a standard practice adopted not just in the manufacturing industry but in virtually every industry. I do not criticise them for that. I think that is a reasonable course of action for them to take and they have to judge the circumstances. But this bill says that employers can continue to pattern bargain as much as they want to; it is just unions that cannot. If that is not a clear example of the government's bias in this matter, there are even more direct examples of their bias that I will come to in a minute.

For those who want to understand how pattern bargaining can work and what happens in the real world, I want to put on the record the experiences of workers at a manufacturing location in New South Wales—Joy Manufacturing, and some people will be familiar with that company. Negotiations began in September last year for a new enterprise bargaining agreement at that company. The enterprise agreement they had expired on 31 December, so they started a few months earlier in September, which is a common practice. The bargaining period was put in place by the unions, and there were a couple of days stoppages in early January this year as part of the protected action provided for under the act. In early February, the company put forward four separate bargaining periods to cover the one site; that is, this one company, basically doing one thing, turned around and said, `We are going to pattern bargain, and we are going to break this company up into four little subgroups: hydraulics, gearboxes, warehouses and the main fabrication shop. Every one of those is now a separate entity, and we are going to pattern bargain across the four of them.' So the company said to these people all working in the one place, `You are no longer going to bargain as one group. There are four groups that we will deal with.' They then put undue pressure on each of those individual sections to reach an agreement. They basically said to the members of the union involved that, if they did not reach an agreement in those little sections, they would either lock them out of the business or they would simply shut the gate and the place would close down. I have to say that that is even worse than Peter Reith's legislation.

On 31 March this year, the company started to transfer unfinished jobs from that site to other places and at that point the workers at that factory felt they had no alternative but to go on strike and withdraw their labour, which they did. That occurred at the end of March and the start of April. A few days later on 6 April, the unions met the company whilst the dispute was continuing. They said to the company that the business could get back on track and they would be happy to sort things out, but the company had to give up this idea of having four separate agreements for the one factory and just have the one agreement, which they had had previously and was the norm. The company said no and would not have a bar of it.

On 12 April this year members were sent a new agreement from the company, but again it addressed the four separate entities with four separate expiry dates. Remember that they are all working in the same factory. The covering letter that the management sent out said that the employees had 14 days in which to respond. On 13 April, that is a day later, they received by registered mail a lock out notice of three months commencing the very next day.

I have not heard the Minister for Employment, Workplace Relations and Small Business complain about that three-month lock out. There is not a person in this parliament, there is not a person in Australia, who would think that, if a union said tomorrow that they were going to have a three-month strike, we would not have the Minister for Employment, Workplace Relations and Small Business up in the parliament the next morning putting on a song and dance show and that he would be on the TV, on the radio and press releases would be flooding the media. This company has said it is going to have a three-month lock out of its workers and we have not heard boo from the minister.

That is not surprising. Last year, ACI in Melbourne locked its work force out for five months. People who are concerned about industrial relations in the manufacturing sector in Victoria might like to have a talk about what ACI has done. They had a five-month lock out. There was not a word from government members about that. This is a patently biased manoeuvre by the government. As that real life case demonstrates, pattern bargaining is alive and well and, what is more, there are employers out there who take pattern bargaining to the extreme of splitting up their work force which is at the one location to pattern bargain across. This bill will do nothing about that. This bill will say that that is fine and they can continue to do that because it is going to advantage one side and not the other.

The second fundamental flaw of this bill is that it once again seeks to attack the Federal Court. We happen to hold the view that industrial relations is best dealt with by an independent commission, not by courts. What we are seeing—because of this government's legislation in 1996 where they kneecapped the umpire; they made sure that the Industrial Commission had no power to deal with those disputes that it has customarily dealt with—is that every dispute now finds its way to the courts. There has not been a significant industrial dispute in the last three years that has not ended up in a supreme court, a federal court or even the High Court. That is no way to resolve industrial relations matters. You get tied up in legal argument, high costs and red tape.

It has been the practice. This government put that in place deliberately because they thought they would get a better outcome than through the commission. They have discovered that the Federal Court actually upholds the law and not the political agenda. When the Federal Court said to this government, `You are conniving with Patrick and Corrigan to deny workers on the waterfront their livelihood. On the face of it, we think there is a conspiracy. You cannot do those thing,' this minister and this government were unhappy. Earlier this year the Federal Court said to BHP, `We think you might be breaching the law by telling your workers you will not negotiate with them about an agreement. They must sign an AWA.' There are many other cases like that.

The simple fact is that the government are now having its third attempt at circumventing the Federal Court. They tried to do it with their second wave legislation by effectively transferring authority to the state supreme courts. They tried to do it when we set up the magistrates court. Members will remember at the end of last year that the parliament established a new magistrate court effectively to deal with the overflow of family law matters. This minister tagged on to the end of that a provision for the new Federal Magistrates Court to deal with very sensitive industrial relations issues. Not surprisingly, the parliament rejected that. Now we have the third attempt—piggybacked on to this legislation is another go at trying to circumvent what goes on in the Federal Court in terms of dealing with industrial relations matters, empowering the state courts to deal with these matters and preventing the Federal Court from doing so. There is clear reference to this at paragraph 27 of the explanatory memorandum. It states:

Proposed subsection (2) would prohibit the Federal Court from issuing anti-suit injunctions in respect of proceedings being brought or pursued in respect of industrial actions under ...

It then lists the sections. Basically, what that means is that when the Supreme Court has issued injunctions and a union or an employer thinks those injunctions are wrong at law, the union and the employer are, at the moment, free to go to the Federal Court, indeed the High Court, and challenge that. What the government wants to do is stop those parties going to the Federal Court and challenging it. There have been a few occasions where the Federal Court has said, `No, the state court has got it wrong. That is not the way the federal legislation is meant to apply.' Here we have the third attempt to circumvent things.

The third fundamental flaw in this bill is so amazing I had to read it a few times before I actually believed that it was in the legislation. This bill includes a requirement that the umpire listen to one side of the argument only. Under this bill, when a matter gets before the commission the commissioner will be obliged to take particular regard to what the employer alone says. We have always said this government has a bias and most Australians know that to be so. But here we have it in black and white. There is no misunderstanding the words. I will read, inter alia, directly from the bill. Subsection (4) states:

In determining ... whether entitlements sought by an organisation ... are of such a nature that they are not capable of being pursued at the single business level, the Commission must have particular regard to the views of the employer ...

The effect of that is that when the two parties come before the commission, the union and the employer, in the normal course of events the umpire sits there, listens to the arguments, has a look at the law and makes a decision. Not now—not under this bill. When the union and the employer both come before the commission the commissioner will, as a matter of law, have to take heed of what the employer says, not what the union says. That is an amazing provision in any piece of legislation. I know of no precedent, not just in industrial relations in this parliament, but in state parliament, in administrative law, in criminal law, where the parliament tells the umpire it must have particular regard to one side of the argument. But it is in this bill.

These flaws are so fundamental that the bill deserves to be defeated on the second reading. I happen to think, though, that the minister has probably put a few of those things in there, tucked a few extremes in—his normal tactic—go a bridge too far. He has put some of those in there so that when he sits down to talk to the Democrats he can say, `All right, you are right about that; I will remove that clause', and give the Democrats a few concessions so the Democrats can go away and think they have somehow found the middle ground. My advice to the Democrats is: don't be conned. The tactic is clear in the government's approach to this issue. Don't be conned. This is a patently biased and deliberate attempt to strip from workers an entitlement they currently have and to blatantly allow employers to continue to use exactly the same vehicle at their whim.

One of the things the bill provides is some recognition of problems that may occur on individual sites. There is a note to item 6 of the bill that, when I read it, I thought referred to the construction industry. It talks about the fact that it may be okay to have an enterprise bargain across more than one employer on a particular site of work. I mistakenly thought that note was there to ensure that the construction industry was not going to be lampooned by this on the way through. In fact, it does nothing of the sort. It provides no solace for the construction industry. I say that deliberately because the construction industry employers have made it very clear that they do not want these sorts of provisions contained in this bill to apply to them. The construction industry have made it clear that when they are on a building site with 20 or 30 or 40 different contractors or employers, if it suits their purpose—and that is their decision, not Minister Reith's or mine—to have one agreement covering all those employers on that one site, it is administratively easier. Let them do it; that is what they want to do. The construction industry have made that plain to anyone who will listen to them, but unfortunately the government has done nothing to address it. That maybe another `gimme' for the Democrats, but clearly the bill has failed to take notice of it.

I referred to the outlandish provision that requires the commission to have particular regard to the views of employers. I just pause for a minute to ask the rhetorical question: what would be the response if I were to announce on behalf of the Labor Party that we thought there should be legislation, on any matter in industrial law, that said that the commission must pay particular regard to a union submission on any particular point that may come before it? If the Labor Party were to publicly espouse that view we would be pilloried very quickly by the press, by those opposite—by everyone. In fact, the government is doing that here in this bill, in black and white, unequivocally putting it into the law.

There are a couple of other matters I want to refer to in the few minutes remaining to me. This government has managed to put industrial relations out of the hands of umpires like the commission and force a confrontationist, gladiatorial system upon Australian workers and employers. Confronted with that, the only relief people have is to go to the courts. The situation is so severe that justices of our courts are now making speeches complaining about the situation, complaining about the confrontation that regularly occurs in their courts that is really a matter for industrial conciliation commissioners. I want to quote the comments of Justice Nathan, who in February this year—not that long ago—referred to the current act as having reduced the industrial parties to a fight `redolent of the Grecians and Spartans'. So we have this epic battle that Justice Nathan identifies as having been forced to be played out in the courts as a result of this government's legislation. He added that the courts have become the new industrial battleground as the act invoked `ritualised mayhem in which only the innocent are slaughtered'. That is the system this government has put in place. They are not my words; they are the words of one of our justices, observing the reality of what transpires before him in the courtroom.

Against that background this government says that because they have one problem with one industry in one state they want to legislate to deny every worker everywhere in Australia in every industry a right which they currently have. Against that background this government thinks that is a fair response. Not only is it not a fair response; it is very poor public policy. The proper public policy prescription is to put back in place some balance, to restore some authority for an independent umpire. Later in this debate, when we get to consideration in detail, I will be moving a series of amendments to the principal 1996 legislation that give an indication of how that might be done, how we might set about putting in place some decency and ensure that we have an Industrial Relations Commission and umpire that are effectively able to settle industrial disputes and allow the parties to go about their business and, when a dispute arises, for it to be dealt with in a civilised way rather than using this philosophically driven, gladiatorial approach that Minister Reith pursues at every opportunity.

There are a couple of final comments I would like to make in relation to the bill. I notice that not only are the government keen to rush this through the parliament in the next couple of weeks but they are keen that when any matter comes before them as a result of this bill it be rushed through the commission. The bill requires that the commission must deal with any of these applications brought under this section within 48 hours of the application being made. So this is high priority. The commission is going to set aside whatever other matters may be before it and rush this through. That is probably not a difficulty, given the way the minister has knee-capped the commission and scoped down its authority in just about every other area, but it is an indication of the warped view the government has brought to this debate.

Another important aspect that should be placed on the record is where this will now leave us in relation to our international obligations. The 1996 legislation has already been the subject of adverse comment by the ILO. The panel of experts has now twice concluded that this government's industrial relations laws fail to meet our international obligations—that is, conventions to which we are a signatory. It could be worse. The government's response to that has simply been to attack the ILO. Rather than address the substance of the concerns twice raised by the ILO, the minister just publicly attacks them and berates them. It could be worse, because in another area to do with the seafaring industry where we are in breach of ILO conventions the government's response has been to withdraw Australia's name from the convention. So, rather than meet the minimum standards, we are actually going to cease to be a signatory to the agreement. On the bright side, the government is not proposing that we withdraw our name from one of the fundamental conventions of the ILO dealing with the rights of workers to collective bargaining. Given that we are already in breach of ILO conventions, there can be no doubt at all that this bill puts us grossly in breach of our international obligations. That is a national disgrace. It is a disgrace for the Liberal Party in the year 2000 because, in the past, Australia has been able to hold its head high in the international community of the ILO. It did not matter whether it was a Labor government or a Liberal government, whether it was Bob Menzies or Malcolm Fraser or Billy McMahon or Bob Hawke—take your pick—we had a good reputation. We do not any more. That is a product of this government and this minister—and that is a disgrace which will be rectified as a priority by the Labor government. I move:

That all words after “That” be omitted with a view to substituting the following words:

“the House:

(1) condemns the Government for introducing a bill which:

(a) further entrenches unfairness and bias in the existing industrial relations system;

(b) is particularly biased in its application to unions only while allowing employers including the Commonwealth Government to foster and use pattern bargaining;

(c) directs the Australian Industrial Commission to have particular regard to the views of an employer when determining what constitutes pattern bargaining;

(d) reduces the opportunity for Australian workers to protect and enhance their wages and conditions of employment;

(e) further restricts the independence of the Commission;

(f) emphasises the punishment and prevention of industrial action rather than its resolution;

(g) fails to ensure that Australia's labour standards meet our international obligations;

(h) has been introduced without providing the Parliament or the public with a proper period for consideration and consultation;

(i) reveals the Government's partiality in failing to consult any further than employer groups on the bill; and

(2) calls on the Government to introduce a new bill which:

(a) delivers fair and equitable outcomes for Australian workers; and

(b) provides for an independent commission with the appropriate power to conciliate and arbitrate fairly and settle disputes”.

This amendment makes it plain that we oppose this bill. It sets out the reasons why we oppose this bill and calls on the government to introduce a new bill that delivers fair and equitable outcomes for Australian workers and which provides for an independent commission. As I said earlier, in the consideration in detail stage I will move some detailed amendments that will go some way to identifying how we can have an independent commission to bring some balance back into this system rather than the divisive and politically driven campaigns of this government and Minister Reith. (Time expired)


Mr DEPUTY SPEAKER (Mr Quick)—Is the amendment seconded?


Ms Roxon —I second the amendment, and reserve my right to speak.