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Wednesday, 30 October 1996
Page: 4810


Senator COOK(6.33 p.m.) —I want to speak on the objects of the bill, which are before the committee. I want to do so by prefacing my remarks with the observation that when I spoke last there was not a publicly notorious deal between the Australian Democrats and the government. There is now. That does reflect the complexion of this debate in this chamber and it reflects the complexion of the clauses that we have here before us. Clearly, such a deal enables an act to be carried in the form that the majority of this extended coalition will allow.

It is very important to put on the public record some of the concerns and also sound a note of warning about some of the potential results of that deal in a practical world. That deal was struck on a two-party basis without the Australian Labor Party being involved and without the immense knowledge and background that the Australian Labor Party has in this field. It was a deal struck by the Democrats, with the greatest respect to them and an acknowledgment that their intentions were honourable. Nonetheless, without that information base, I would submit strongly to this chamber, it is a deal flawed. Without that knowledge base, it opens up the workplace to exploitation.

In looking at this bill, I think the first and obvious question that anyone asks themselves about a bill before a parliament is: what is the head of power in the constitution of Australia that the parliament draws on to enact this legislation? In the case of the original Industrial Relations Act in this nation, the head of power was that clearly set out in the Australian constitution by our constitutional forefathers, allowing the parliament of Australia to make laws governing the prevention and settlement of industrial disputes going across the border of more than one state. It is set out in the constitution. For clearly a century we have drawn from that head of power.

In the last two parliaments we extended that head of power to include the foreign affairs power. We did that for a very good reason. The international standards in this field, with Australia moving into the international economy, are important issues. The arbiter of international standards—the United Nations, if you like; certainly it is a UN agency—of international labour relations is the ILO. I know that the government has made a great deal of sport publicly by misrepresenting the ILO. The ILO is called the International Labour Organisation—L-a-b-o-u-r—because it deals with workers and employers and the labour force. When it was the opposition, the government tried to pretend that it was a `Labor Party' international organisation, which is of course a public lie and not true.

The ILO is a tripartite body. It is unique among international bodies in that sense. It is tripartite in that it has three parties that appear in it as the stakeholders—governments, employers and workers. For a convention of the ILO to be proclaimed as a fair labour convention, all three parties must concur. Where all three parties speak with the one voice internationally through economies that cover developed countries and developing countries and countries in various stages of economic growth, there has to be an overwhelming unanimity of view. Conventions are given birth when there is. Because they are, they carry a certainly international moral as well as political force as to what the fair standards of behaviour should be in modern workplaces as we move towards the year 2000 and the 21st century.

It seemed appropriate to the former government that, as a good international citizen, through the foreign affairs powers of the constitution, we should draw on those international powers in setting standards in Australia. That still remains a fundamental principle. It is one the government rejects. The government is wrong in that and the government is captured by its own tawdry rhetoric on this subject. What this bill does is go further and draw on another head of constitutional power which our constitutional forefathers never intended but which this government has pressed into service for the sake of the expediency of this legislation, and that is the corporations power in the constitution.

We had an interjection from the Parliamentary Secretary to the Minister for Sport, Territories and Local Government (Senator Campbell), who is at the table, to Senator Lundy, when she was talking about some of the things in the objectives of this bill. He said, `Why didn't you do it?' We did not do it for the reason that we had not used the corporations power as the head of power to legislate. But this government is using it. I think there is an arguable case whether it should but, for the sake of improving industrial relations, my party at least accepts it for the time being. But there is an arguable case as to whether or not that is a legitimate expression of what was intended by the constitution. It is a way of managing the constitution for modern legislation. We all know how difficult it is to bring the constitution up to date.

With those remarks, let me say that the objectives of a bill ought to reflect indeed the full intention of the bill. The two most important clauses, I always think, in a piece of legislation, are these. Firstly, what are the objectives of it? If they are clear, how you then encode those objectives or give expression to those objectives is what the rest of the bill is about. The second most important part of the bill is what its scope is. In other words, what is the extent of its coverage? One of the most vexed questions in Australia over history has been: what is an industrial question? What matters can the arbitration commission deal with—that is, matters prescribed as industrial questions? What matters can't it deal with—that is, matters that are not prescribed as industrial questions?

One of the truths is that the limitation of the constitutional head of power has limited the objectives of previous acts—and limits the scope of them—and left outside a number of things that, in the modern workplace, are clearly industrial but, nonetheless, the commission were not clothed to deal with. I also foreshadow, when we come to the question about the scope and power of the industrial relations commission, that that is a matter of quite considerable importance.

Just turning to the objectives part of the bill, I will not take these necessarily in order because, in the time allowed to address the committee, I do not have sufficient time to go through this in the type of detail that I would like. It is convenient for me to start with the opposition's proposed amendments—firstly, as I read it here, paragraph (l). In this we say that we need to add in to the bill the provision:

(l) ensuring that labour standards meet Australia's international obligations.

It is convenient only because I have just addressed the committee on the ILO. I think that is a fundamental provision. As I say, we, as a nation, need to be sure that the labour standards applied in Australia are labour standards that are reasonable by the international measure and not just by our own domestic measure. The court that determines that is that tripartite body the ILO. Unless the objectives of this bill reflect the ability to do that, to encode ILO conventions and recommendations, then we fall short of what is necessary in modern industrial relations. Indeed, by excluding it, the government reveals, I think, its hand in that it wants to not meet those internationally declared standards or it wants to provide a bit of ice for itself to slide below them or to manipulate them where it suits its needs.

The most sensible thing here is to say that the ILO does have power in this field; its role is respected; it should be recognised. We should have, in this bill, a provision that explicitly does so. I support strongly the opposition proposals on that score.

If one needs to look at all the amendments that we are proposing, without in any way derogating from the significance and importance of any one of them, the one that I would place as the pre-eminent change that is necessary to the objectives of this bill is the provision that we insert in the objectives of this bill that no-one will be worse off.

I say that for a number of reasons. Firstly, I believe this bill is a public confidence trick by the government. The government has hijacked Labor rhetoric to sell a bill of goods to the community and reassure the community that it will be all right. If this bill gets passed as the package that has been agreed and comes into force and is shown to be flawed and the people begin to realise that the promises made blithely by the government at election time are false and fraudulent, then they will rebel—but then it will be too late.

I think the role of the opposition is to hold the government strongly to the position that it put to the people, which the government sought a mandate for. The fundamental thing it said to the people in the election debate was that no-one will be worse off. That is what the government said; that is what the government should have in this bill. That should be a fundamental objective of this bill. If that is what it sought its electoral mandate on, and it got a mandate, that is what it should be made to encode in this legislation. If it does not do it, it is the first step towards eroding its own mandate or crawling out from its own election promise.

No-one could say that that was not a core promise. You would all have to say that that was a fundamental promise. The reassuring noises the government made to the Australian work force and to Australian employers that no-one would be worse off and that this would bring harmony into the workplace were, I think, quite a significant undertaking by the government in the run-up to the election.

Not only is it important to hold the government to its promise; it is important that it be there in order to protect vulnerable members of the work force, in particular trainees and apprentices, who have virtually no bargaining power in the present labour market. They need the force of law to guarantee them a protection.

We heard just last sitting week that a Newcastle firm had advertised for 40 apprentices and that something like 1,900 applicants turned up for the job. No-one can believe that, in the queue for those 40 jobs, any one of those 1,900 young prospective workers had any bargaining power at all in negotiating with that company, a major Newcastle firm, over the terms and conditions of their employment. I think a provision such as this is necessary in order to provide some clear direction in this act, as a key objective of the act, to ensure that those people are not exploited.

Again I say: if you leave that provision out—if that is what the package between the Democrats and the government does—then this has to be declared, frankly and openly, to be a reprehensible package that should not pass in the public interest, and certainly not in the interests of those who are vulnerable in the workplace.

I also draw attention to provision (c) in our amendments, which states that, whilst we accept that the act must ensure that primary responsibility for determining employment matters should be at the workplace, we in the opposition wish to add the necessity for this to occur within the framework of the act and with the protections of the commission. I think that is pretty fundamental because the act should not recognise, even in a de facto way, determination of employment matters at the workplace outside of the framework of the act itself; that is, informally or without the protections of the commission and without review of workplace agreements by the commission.

The only umpire in this field is the commission. If you tie the hands of the umpire behind his back, put a blindfold over his mouth and prevent him from speaking, then injustices will occur. The only way you can guarantee that is, I think, by accepting the principle we have set in terms of this legislation.

There are a lot of other things I could talk on in relation to the objectives, but I do not have time in the allocation available to me now. One of the other ones I draw particular attention to is (f) about effective bargaining—not just agreement making, as provided for in this bill. Bargaining, to succeed and to hold, must be fair. If the parties cannot conduct fair bargaining, if it is just an agreement, it is a fraud. (Time expired)

Progress reported.