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Monday, 12 October 2015
Page: 7239


Senator McALLISTER (New South Wales) (11:00): If we think about the vision that I think most Australians have for our economy and for our workplaces, it is for workplaces that are productive, innovative and fair and a society of equals, not a society of haves and have-nots and not a society where people, despite working routinely, find themselves poor and unable to meet the basics of life. We are a community that have always prioritised fairness. It does not mean that we are not interested in innovation, productivity and prosperity, but we understand that fairness and prosperity go hand in hand and that this must be underpinned in our workplaces by a fair distribution of the fruits of our collective efforts at work.

Unfortunately, this Fair Work Amendment Bill 2014 is yet another indication that this is a government which in no way shares this vision; a vision which, yes, is held by the Australian Labor Party but which is also reflective of the views of the Australian people. In recent days, we have seen the Prime Minister talk about penalty rates on Sundays as being an accident. Well, I can inform the Prime Minister that penalty rates are not an accident of history. They have been hard fought. They reflect a recognition that people working on Sundays make great sacrifices away from their family, away from their friends and away from the community organisations they value and that penalty rates are a fair recompense for the sacrifices they make.

They also reflect the fact that wages and conditions in this country and the distribution of profits are hard fought for. Working people in our country have always banded together to ask for a fair deal from the employer. It is a part of our political tradition, it is a part of our workplace tradition and it is a tradition that I am happy to defend. It is a tradition that sees a country like Australia enjoy higher than average wages compared to our OECD counterparts and it is also a tradition that sees employees in this country face higher than usual levels of job security. I know there are some on the other side who would see this as a problem. They would probably describe this as the problem that needs to be solved, but this is not a problem that needs to be solved.

Good wages, good working conditions and job security are the cornerstone of communities that are able to sustain happy homes, happy communities and productive enterprises. They are not a problem. It is important when we hear this endless talk about flexibility from the government that we think seriously about the flexibility that we are talking about. For some in this chamber, it is always about flexibility for the employer. It is never about flexibility for the staff member who may have caring responsibilities or who may have a desire to contribute to their community outside of the workplace. It is never even about the kind of kind of flexibility in the workplace that can to lead to improvements in productivity or lead to innovation. It is only ever about the kind of flexibility that transfers risk onto working people, the kind of flexibility that transfers costs onto working people and the kind of flexibility that shifts the share of profit and wages to employers.

Senator O'Neill was in the chamber earlier and she spoke about the situation at 7-Eleven. In recent months, we have had a graphic demonstration of the power imbalances that exists in workplaces when working people do not have access to a union and when working people are not in a position to bargain fairly with employers. The naive idea that a conversation between an employee and employer occurs on even terms without the involvement of a union or some form of organisation or protection is one that really cannot be sustained in the face of what we have seen in the 7-Eleven scandal.

When I look at this bill, what disappoints me about it is that, yet again, the key provisions in the bill are about reducing the role of trade unions, reducing the right of working people to independently express their views in the workplace and increasing the ability of employers, just some employers, to wind down and to screw down the entitlements that have been hard fought and which sustain the Australian way of life.

Other speakers have made much of the fact that this legislation arises from a review initiated by Bill Shorten when he was the minister—indeed, that is correct. In 2011, he announced a three-member panel to review the acts that make up the government's Fair Work legislation. The panel was asked to assess the operations of the act and the extent to which its effects have been consistent with its stated objectives and to report on the extent to which legislation was operating as intended. At the time, Minister Shorten said:

The Fair Work Act underlines a balanced system for good workplace relations — one that promotes national economic prosperity and social inclusion for all Australians. Real economic prosperity and growth requires fairness and security in the workplace.

That was the basis on which the review was undertaken. The Labor government was committed to a system that allowed for efficient and effective negation between staff and management. In undertaking the review, they received over 250 submissions from unions, from employer associations and from industry groups. However, despite the fact that a strong set of recommendations were produced, this bill goes much, much further than anything that was contemplated by that review, and it has specific and serious problems in relation to the role of unions and in relation to the security of hard-fought entitlements.

I want to turn now to the provisions in relation to greenfield sites. The government has said that its changes to greenfield agreements will ensure that agreements will be subject to good-faith-bargaining requirements, but in reality the changes that are proposed mean the exact opposite. It is very important that workers and their representatives participate in genuine bargaining over workplace conditions, particularly in new projects. Of course we want to see new investment, and we want to see new investment in new industries in this country. Our future prosperity depends on it. It depends on new investment, new industries and new kinds of jobs in new parts of the country. But this prosperity cannot and should not be built on the back of unfair working conditions. Workers need to have a genuine role in determining the conditions of work at these new workplaces.

The changes in this bill mean that employers will gain absolute control over which unions they choose to negotiate with. After an employer agrees to bargain with an employee organisation, the employer at any time can issue a notice to commence a three-month notified negotiation period, and this countdown clock does not stop once it starts. An employer could essentially walk away from the negotiating table and simply wait for those three months to expire. At the end of the three months, the employer—and only the employer—can take a proposed agreement to the Fair Work Commission for assessment and approval. These are not arrangements that are conducive to good-faith bargaining or to fairness for workers.

It is time that the government put aside its ideological pursuits and started to accept that enterprise bargaining is a two-way street. It is a conversation between all the people in the workplace that are needed to make a productive and efficient workplace. It is not an employer driven dead end, and it should not be. The provisions in this bill about greenfield sites are not reasonable provisions. They are designed to wind back conditions, and they risk the evolution of Australian industries that are built on poor conditions rather than on innovation and productivity.

I want to turn too to the arrangements for individual flexibility agreements. This bill amends these so dramatically that they are, in essence, Work Choices AWAs. The bill will allow monetary benefits to be traded away for non-monetary benefits. That might be reasonable, but this provision in this bill goes significantly further than the expert panel's recommendations. The expert panel suggested that, if a non-monetary benefit is being traded for a monetary benefit, the value of the monetary benefit forgone must be relatively insignificant, and the value of the non-monetary benefit being gained should be proportionate. Despite this very clear prescription in the recommendations, these terms 'relative insignificance' and 'proportion' are missing from the government's bill.

These were important and strong protections. We are not a country where we accept that it is okay for people to be paid in food, for example. These are not provisions that should be considered reasonable, particularly when we are considering people who are in poor bargaining positions, who may not be in a position to assess, themselves, whether the conditions that are being proposed in any way leave them better off or worse off. We are not often talking about people with extensive legal backgrounds; we are talking about individual workers, sometimes with low levels of education, who deserve, both from their union and from the government, serious oversight and protection when making arrangements of this kind.

That brings me to the next problem with the bill. Other speakers have spoken about the fact that there is a new good-faith defence for employers who can demonstrate that, at the time they formed an individual agreement, they were acting in good faith that they were in compliance with the Fair Work Act, particularly in relation to the employee being better off overall. The expert panel was very explicit about how this should work. It explicitly recommended that, upon making an individual agreement, the employer should notify the Fair Work Ombudsman in writing. That is because the Fair Work Ombudsman has a role in overseeing the overall evolution of industrial relations in this country, in particular to make sure that we are not seeing pockets or individual examples of gross unfairness as people work their way through the industrial relations system. But no such requirement is included in this bill. Instead, an employer will be able to rely on their reasonably held belief that they were compliant with the act, and they will be able to provide a proposed 'genuine needs' statement, which the employee may have signed, as evidence of this belief.

Let us think about how this would actually work. An employee is called into the office and told that their continuing employment is dependent on signing such a statement. There is no requirement that the employee in this situation be informed that they can provide this new flexibility agreement to their union for review. There is no requirement that the employee be informed that they do not have to sign immediately, that there is a cooling-off period. And there is no requirement that the employee be informed that they do not need to sign it at all, that they can continue to work in that place, dependent on the award, without trading away their conditions, and still retain their employment.

This is not fair, and it is particularly unfair for those workers who are in a precarious position, for whom every dollar coming into the household means the difference in being able to pay the bills, buy the groceries and pay the rent. These are not reasonable conditions under which a person can bargain with an employer, because it is simply an unequal relationship. It is beyond me why the government would not have included provisions for oversight of these kinds of arrangements from the Fair Work Ombudsman or stronger protections for workers who are asked to sign agreements of this kind.

I want to talk a little bit about the significance of award conditions and the kinds of people who are dependent on awards, because there is an idea that what we are talking about here are a small number of very, very well paid individuals cushioned by special arrangements. When we are talking about people who are protected by awards, nothing could be further from the truth. There are many employees in this country who are solely reliant on the award for their pay and conditions, and they are typically those groups of workers with very little bargaining power. According to the Workplace Research Centre, 55 per cent of all casual employees, 61 per cent of all female employees and 65 per cent of all part-time employees rely solely on the award for their conditions. These are not wealthy people. Seventy-five per cent of those who are reliant on the award for their conditions earn less than $18.60 an hour. These are our neighbours, our friends, our colleagues, the people in our community organisations and they are people whose conditions need to be protected. They are people who are likely to be struggling to meet basic necessities, they are people who do not enjoy extravagant family holidays but this bill does absolutely nothing to support those people; instead, it allows award conditions to be traded away with little scrutiny, little oversight and little protection or access to unions. What is shocking about this, of course, is that none of this was signalled by the government prior to the last election; indeed, the exact opposite was promised.

The then leader—yes, he was the leader—Mr Abbott, was asked: will you be tinkering with unfair dismissal laws and will you be winding back penalty rates? Mr Abbott, at that time, said, 'The short answer is no to both questions.' Senator Abetz was asked questions in similar terms and he made similar kinds of guarantees. Will Tony Abbott guarantee he will not rip away rest breaks and long service leave? The answer is yes. But of course these were not promises that have been kept. In government, what we have seen is the endless pursuit of small ways of winding back the opportunities for working people to represent themselves in their workplaces and the provisions that have been secured through these means.

Unfortunately this bill, proceeding under a new Prime Minister—Prime Minister Turnbull—is yet another indication that absolutely nothing has changed. The Turnbull government, like all other Liberal governments before it, just do not get it on workplace relations, just do not understand what it means to work an ordinary job and to be reliant on a fair, safe and reasonable workplace. We see it in the way that they approach quite reasonable requests from the Labor Party to have a sensible conversation about the labour market testing provisions around ChAFTA. We see it in their ongoing insistence that penalty rates should be on the table even though we know that penalty rates are a core component of just making do for many ordinary families around the country and we see it in the changes that are before us in this bill.

What is so frustrating about this government's continuing fixation with shifting the share of wages and profits is that it occurs without any deep thought about what would actually be required to lift productivity in Australian workplaces. We do need to improve productivity. We do need to identify new sources of economic growth but there is very little evidence from the government side that any of this is really on the table. There is no deep thought about managerial capability in Australian workplaces. There is no deep thought about science and innovation and the collaboration between our businesses in Australia and our world class researchers. There was a second-rate and expensive broadband project with no real thought about how a genuine broadband transformation could generate new industries built on new services and products. There is no serious thought about skill formation; no thought about the way that working people, school leavers, people at university are going to form up the skills that will support them through a lifetime of contribution to innovative and productive workplaces. This bill does not seek to pursue any of these things, and we do not hear the government talking about these things either. Instead, we just see yet another bill which seeks to restrict the ability of ordinary people to participate in their union and we see a bill that makes it easier to strip away hard-fought conditions without any scrutiny from the mechanisms of oversight that were put in place to protect workers.

Sadly, this bill indicates that when it comes to working people, absolutely nothing has changed. This is a one-sided government that can only ever see one side of the story, that does not empathise with the real circumstances of ordinary people and that will never give up its war on working people.