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Monday, 6 December 1993
Page: 3894


Senator CRANE (8.02 p.m.) —We are debating cognately the Industrial Relations Reform Bill 1993 and the Industrial Relations Court (Judges' Remuneration) Bill 1993. I intend to split my contribution to the debate on these bills into five parts: the industrial relations court; the boycott provisions; reform of the Australian industrial relations system; lack of consultation; and the use of conventions.

  I intend to deal principally with the reform bill as the remuneration bill only provides for salaries of judges appointed to the industrial relations court. As we are opposing the establishment of the industrial relations court under part 7 of the reform bill, we will also be opposing the remuneration bill.

  Debate on the establishment of a specialist industrial relations court has been around for some 25 years. The last occasion was during the debate on the Industrial Relations Bill 1987, which was aborted by the Hawke-Labor government. By the time the Industrial Relations Bill was reintroduced in 1988, the High Court had determined that the industrial division of the Federal Court did have the authority to make determinations on industrial relations matters. Therefore, the government did not proceed in this direction. I refer honourable members on the other side of the chamber to what the then Minister for Industrial Relations, Mr Willis, had to say at that time.

  Nothing has changed since 1988. The opposition has not been able to find any valid reasons that this court should be established and the minister has not even attempted to justify the need for it. On that basis, there is no justification for the establishment of this specialist industrial relations court which will make already complicated legal systems even more complex. One could well also mention the additional costs of putting another court in place and how much it would cost taxpayers. The Law Council of Australia spelt it out clearly to the Senate committee. It said:

No reason is given why the Federal Court could not exercise the jurisdiction, even the new jurisdiction, proposed for the Industrial Relations Court. There is no suggestion that the Federal Court has not performed effectively in its Industrial Division.

The opposition will be moving an amendment to part 7 of the reform bill to delete all reference to the industrial relations court to ensure that the Federal Court of Australia continues to have jurisdiction for industrial relations matters.

  The second matter I wish to address is the boycott provisions at part 6 of the bill. The opposition totally rejects the changes to the boycott provisions, as does every employer organisation in the country, and we will be moving to delete part 6 of the bill. In cases such as Mudginberri, Dollar Sweets, Columbus Shipping Line, the live sheep export dispute and the boycotting of our mining industry, the main protection for industry has been the secondary boycott provisions of sections 45D and 45E of the Trade Practices Act. They have worked and worked extremely successfully. Under this bill, they have been diluted to such an extent that they will be useless both as a threat against taking illegal or irresponsible action and as an option for obtaining speedy resolution to disputes.

  The new 72-hour rule is just a licence to damage business going about its legal activity. The situation was best expressed to the committee by two comments, the first by Dr Blain, an adviser from the Western Australian government. He said:

. . . we very much support the thrust of what you are saying, that is, we very much support the retention of the existing provisions for 45D and 45E. I think an important part of the rationale for our support is what we would call the threat effect. I think this is what you were alluding to, perhaps in different words. The fact that it has not been used on a large number of occasions is not the major point. The major point is that it is there to be used if the situation requires.

The second comment, by Mr Barry Watchorn of the Australian Chamber of Manufactures, relates to the 72-hour rule. He said:

. . . you are looking at a regime in which there is a theoretical 72 hour window of opportunity, albeit that the commission can cut short, where boycott action can bite on an employer. There are cases in which 72 hours can be extremely damaging, certainly for those involved in organising exhibitions. And dare I say it, in such extravaganzas as the current Madonna series of concerts, 72 hours could be too long for any of that.

The fact that political boycotts will now legally return without any protection in the Trade Practices Act is unfortunate and will mean that industry in this country will be very severely damaged and could well move offshore.

  The third area I wish to deal with is reform of the industrial relations system in Australia. This bill will go down in history as an opportunity lost. This bill is an unmitigated disaster. Let us look at the intent and the result. To do so, we should recall what the Prime Minister (Mr Keating) promised in his speech of 21 April. He said:

Let me describe the model of industrial relations we are working towards. It is model which places primary emphasis on bargaining at the workplace level within a framework of minimum standards provided by arbitral tribunals. It is a model under which compulsory arbitrated awards and arbitrated wage increases will be there only as a safety net. This safety net would not be intended to prescribe the actual conditions of work of most employees but only to catch those unable to make workplace agreements with employees.

Later in the same speech the Prime Minister said:

We want it to be close to 100 per cent of employees under federal awards.

The question now becomes: will the legislation fulfil the Prime Minister's statement? If the evidence given to the Senate committee in most of the submissions and from a vast majority of witnesses is any guide, the answer is a categorical no. For example, Mr Vernon Winley, assistant director of the Business Council of Australia, told the committee:

Our view is that the Industrial Relations Reform Bill misses the opportunity to introduce real reform into the industrial relations system.

Again, during the committee hearings Mr Bryan Noakes of ACCI was asked whether this delivers what the Prime Minister promised. The answer was:

No, it does not, not in the least.

The Prime Minister's vision for industrial relations reform pivoted on a massive expansion of workplace or enterprise agreements, on productivity improvements and resultant increases in employment opportunities. But that vision, which may have been able to be achieved, was hijacked by the ACTU.   In the end, all that was achieved was to make already complex procedures more complex and difficult to satisfy, even in the relatively simple certified agreements area. This was best illustrated to the committee by Mr Reg Hamilton of ACCI who said:

The second issue I wish to raise relates to paragraph 7 at page 3 of our written submission, where we indicate that the new certified agreement provisions add some eight new tests.

He went on to say:

It seems the count has gone up. We are now advised that there are an additional two tests, so that should read that the new certified agreement provisions add some 10 new tests to the existing provisions.

So much for simplification and making it easier!

  In the area of enterprise flexibility agreements covering employers and non-union employees, the situation is even worse. In fact, when asked if this legislation would be an impediment to improving employment in the small business sector, Mr Robert Bastian of the Council of Small Business Organisations of Australia said:

From my understanding of it and from what I believe to be the average small employer's understanding of it, unquestionably yes.

The more one delves into this bill, the more obvious it becomes that it is a step backwards, not a step forward.

  The fourth matter I wish to address is the lack of consultation. Mr Brereton claims he consulted widely. Let us look at the response to this claim. In doing so, I acknowledge that he or his department did table the number of meetings that were held with various groups, but it is worth noting that a number of speeches made at conferences and the like were included in the meetings with employers or employer organisations. I refer to an extract from the submission made by the Australian Chamber of Commerce and Industry to the Senate committee. It states:

The process of developing the bill was inappropriate and not in accordance with a tripartite approach. The framework for the bill was developed by bipartite discussions with the ACTU through a negotiating committee on which ACCI was not represented.

Nor, might I add, was any other employer or employer organisation. Later in the same submission, ACCI stated:

No agreed positions were reached, no policy proposals were put to employers in writing, and ACCI received no response to its comprehensive written submissions forwarded to the Government in May. No written advice of any kind was received from the Government until after it had reached agreement with the ACTU, and on no occasion has ACCI been formally provided with a copy of that agreement.

This view was consistently put by all employer representatives. What has emerged is a lopsided bill which gives increased power to the trade union movement; it does not provide equity between the various parties. This was best expressed by the National Farmers Federation which, like others, stated:

No, we do not think it provides equity between the parties.

An analysis of the submissions from 27 individuals and organisations received by the Senate standing committee on this bill, shows just how widespread opposition to the bill is. Submissions from the ALP governments of South Australia and the ACT and the one from the ACTU were the only cases of support without reservation. The Queensland Labor government, while expressing support, expressed reservation about the intrusiveness of the bill with regard to states rights.

  One submission thought the ILO related provisions for workers with family responsibilities were too narrow. Another submission, from the Coal Association, did not address the terms of reference but made some very valid points about its unique industrial relations position with regard to the Coal Industry Tribunal, which no doubt will be debated at another time.

  The remaining 20 submissions—that is 20 out of 27—all expressed opposition to the legislation for a variety of reasons, including concern that the Industrial Relations Reform Bill would not achieve its stated aims; union bias; reduced employer legal powers, especially the secondary boycott provisions; the use of external affairs powers; the complexity of enterprise agreement procedures; and the unnecessary duplication of existing legal procedures.

  Even if the consultation had been balanced, there is little chance that equitable legislation would have been drafted when it is noted that 27—or about 25 per cent—of all federal Labor members and senators list as an occupation before entering parliament paid or senior representational positions with a trade union or trades and labour councils. It is clear that the consultation process was lopsided. In fact, one can only conclude that employers were delivered a fait accompli to fiddle at the edges. The dissenting report's principal recommendation that the bill should be returned to the minister is absolutely valid.

  Another area which I find disturbing—and the last one I have time to address today—is the increasing tendency of the federal government to justify its legislative program by using ILO and United Nations conventions, and to impose the intent of them on states by application of the foreign affairs powers. In the case of this legislation, the inclusion by annexure of ILO and United Nations conventions has reached new heights and, as far as we can ascertain, for the first time we have witnessed the use of ILO recommendations which carry no legislative weight and which, in some instances, are contrary to the provisions contained in the relevant convention.

  Another worry is the inclusion in the bill of ILO convention 135 on workers' representatives, which was ratified by the Keating government on 26 February 1993 and which will have no effect on Australian law until 12 months have elapsed since ratification. This ratification was contrary to the guidelines laid down by the Department of Prime Minister and Cabinet to the effect that initiatives of this nature should not be undertaken during an election period.

  Obviously, this government is too lazy and incompetent to introduce its own legislation program. It relies on bad information provided domestically by the likes of the ACTU or, internationally, by the ILO—in both instances, sources with barrows of their own to push. The Keating government is hiding behind the skirts of international government by using the foreign affairs power in a manner which was never intended. By this means, legislation has been enacted which has profound effects on federal and state jurisdictions without proper debate in the federal parliament or between the federal and state governments.

  This government ignores the mandate given to the state governments to reform industrial relations, particularly in Victoria and Western Australia—and it is worth looking at the recent survey with regard to industrial relations reform in Victoria. Instead, it uses a sledgehammer approach with the use of the external affairs power to impose its own will on those states which maintain their legislative independence and continue to resist pressure from the ACTU or the TLCs.

  Federal Labor is quite open in this regard. The minister's second reading speech in the House of Representatives and his colleague's speech here use the same words. They state:

In States where the standards, as outlined in the legislation, are adequately met, the federal provisions will not apply.

Yet we see from this legislation that we could well have the situation whereby, because the words in the Queensland and federal legislation are similar in that the minimum wage is set by an arbitrated mechanism, but that of Western Australia is set by the minister on a recommendation from the Western Australian Industrial Arbitration Commission, the minimum wage in Western Australia could be higher than that in Queensland while being illegal or not accepted under this legislation. If anyone can think of anything crazier than that, I do not know what it can be. The Senate should amend the bill's title and call it the `Trade Unions Sanctions and Power Enhancement Guarantee Bill 1993', because that is what it is all about.

  During the bill's SCEET hearings, witnesses were asked about their comprehension of the bill. It was best summed up by Mr Robert Bastian of COSBOA who said:

I say over and over again that we do not understand the full ramifications of this bill. Nobody does. That is point one. I stress again that the smaller end of things is where employment is really occurring and where this bill seems, in my view, to land most harshly. Quite frankly, the government is not much further advanced than I am in terms of approaching the back of a TV set with a screwdriver. I just do not think we know what we are playing with here. My strongest counsel would be to say not to ram this thing through in the next couple of weeks, let the debate run for as long as it takes to get a clearer picture.

I am repeating myself. We know that the reversal of direction has been wrought by the very forces that we are frightened of.

When the bill was introduced in the House of Representatives, the minister indicated that there would be a number of technical and other amendments. We have already seen 177 amendments and no doubt more will be introduced here. Whether we like it or not, we are going to be debating this bill and subsequent bills to correct errors, resulting from inadequate drafting instructions, and unforeseen consequences for many months, if not years, not to mention the bad policy behind this legislation. Quite simply, the bill is not ready for debate. It is wasting our valuable time. It has not been prepared with any equity in mind and it will not achieve its intended objectives, even to the extent that the existing act, left in place unaltered, would achieve more.

  On that basis, the coalition does not support any aspects of this bill and accordingly will be voting against it. Certainly in my 3 1/2 years in this parliament I have never seen so much anger and concern expressed by such a wide spread of the community with regard to a piece of legislation. That has come through the committee hearings we have had, through personal comments, through meetings that I have attended and through my fax machine today. I hope that I am not the only one receiving faxes in this place, but I have received more than 300 letters from concerned small businesses today expressing their frustration and concern that this legislation will inhibit their ability to perform and their ability to expand their operations, employ more people and address some aspects of the unemployment problem that we have in this country.

  I do not believe—and nor does the rest of the coalition—that this bill will improve the unemployment situation. It will be another encumbrance on businesses, which will exacerbate the problem. I will quote from a letter I have selected from the pile I have received. The first one says:

Plumbers use `unions' for joining pipes.

The other sorts of unions need to remain limited by law so that small businesses can contribute to the national income.

As Senator, you are obliged to prevent legislation detrimental to this nation. We request that you use your power to stop this Bill.

The other letters are similar. What I can do is raise the issues in this place. I appeal to the Greens, the Democrats and Senator Harradine to recognise that there is a whole group of people in our community who feel totally aggrieved by the federal government's approach to industrial relations. The government certainly has no mandate for what it is doing as a result of the last election. It should stop pandering to the ACTU and look at serving the national interest. (Time expired)