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Monday, 7 September 2015
Page: 6157


Senator LUDWIG (Queensland) (21:31): I rise to speak on the Fair Work Amendment Bill 2014. This bill, should it pass, will make a number of amendments to the Fair Work Act of 2009 to respond to a number of outstanding recommendations of the 2012 Fair Work Act review. With this bill, the Abbott government continues its attack on Australians. First there was the government's budget of cruelty, with a feigned budget crisis to justify cuts to those on low incomes. Then there was a nothing budget, which was really the same budget over again. Now it is the turn of Australian workers, a favourite coalition stomping ground.

Let's face it, when it comes to industrial relations, a coalition government just cannot help itself from reaching its hand into the pockets of workers, let alone one up to its neck once again in a revised Work Choices. I cannot count the number of times those on the other side have said, 'Work Choices is dead, buried and cremated. We are never going to have another look at it again.' Yet every time you see a workplace relations bill from this government it has the shades of Work Choices wrapped around it.

At the slightest hint of power, they are busy in the back rooms again, scheming and devising a dodgy deal with which to erode, compromise and undermine the rights, entitlements and safety of ordinary working Australians.

Senator Birmingham interjecting

Senator LUDWIG: I will not engage on what I know you might be up to in South Australia.

Senator Birmingham: Please do!

Senator LUDWIG: Never mind. This bill is nothing short of dodgy dealing.

This bill is dodgy for another reason. With it, the Abbott government continues on its rampage of broken election promises. For two years this government has been breaking election promises. It is quite an extraordinary effort! Most would try to give up in the first year, but not this coalition government. Work Choices is not dead, buried and cremated. The Prime Minister may not speak its name, but it is clear from the provisions of this bill that Work Choices has been very much resurrected or, if you prefer, reincarnated.

Regardless of the belief system, Australians know there is nothing holy or virtuous about Work Choices. Work Choices meant no choices to Australian workers, and this bill is again about having no choices. There is no choice but to see the rights and protections conferred by collective bargaining and the award system stripped away from workers. Despite the promise that Work Choices is dead, buried and cremated, there is no choice but to stand by while the coalition weaves a complex legislative web by which to micromanage industrial outcomes for the benefit of a few. Contrary to any promise of simplification and fairness, there is no choice but to accept what lies at the heart of the coalition government's industrial relations policy. Fairness and equity for all is expendable for it in pursuit of industrial agendas which benefit the few. There is no choice but to accept that people in a workplace are, for some reason, considered expendable and unworthy. It is hard to imagine what the government considers to be the role of workers.

The government do not value quality of life and family life. They do not value that employees want to earn a fair day's pay for a fair day's work. They do not value that workers' entitlements also include meaningful representation. They do not value hard-won industrial safety standards. They do not value ensuring workplace occupational health and safety and workers' compensation. According to the coalition, fairness, greater income equality and opportunity in the workplace simply should not exist for the worker. The Fair Work Amendment Bill continues in this marvellous tradition the coalition government have set out for themselves. Make no mistake: this bill is a step backwards. It is a Work Choices of the future. We need only consider some of the key provisions to see this clearly.

Under the guise of flexibility, this bill seeks to introduce changes that will force workers into unfair individual arrangements just so that they can gain or maintain employment. The changes to individual flexibility arrangements, IFAs, will make it possible for employers to offer what are essentially individual contracts that will cut workers' take-home pay to below award and enterprise bargaining agreed minimums. They will do so by allowing monetary benefits, including overtime rates, penalty rates, allowances and leave loadings, to be traded away under cover of a signed genuine deeds statement, which can be used as evidence against an employee in exchange for undefined, non-monetary benefits. The proposed changes do so in complete disregard of recommendation 9 of the 2012 Fair Work Review. Recommendation 9 provides for changes to improve the application of the better off overall test in the context of individual flexibility arrangements to appropriately account for non-monetary benefits. Under recommendation 9 only those monetary benefits which are relatively insignificant can be foregone and in exchange the value of any non-monetary benefits must be proportionate.

The reference of 'relatively insignificant monetary benefits' and proportionality strongly suggests that the review considered penalty rates to be significant and beyond the realm of simple horse trading in non-monetary benefits. The requirement of proportionality is an important legal safeguard. It prevents pay and conditions being eroded and workers being exploited in the manner made possible by this bill—whereby overtime meal allowances can be traded for a pizza or a Kmart voucher for Saturday work. That is the risk we run with this type of horse trading that is proposed in this legislation. On the question of the coalition's failure to implement recommendation 9 of the Fair Work Review, we do not need to look very far. The Liberals' website, as it was, said this:

The Coalition supports the many of the remaining recommendations that Labor has ignored and we will seek to implement those summarised below, to the extent that they are not inconsistent with our policy.

The failure to adopt recommendation 9 makes clear what the coalition policy truly is: the overtime rates, penalty rates, allowances and leave loadings of ordinary Australians are so insignificant to this government that they can be traded away for a disproportionate non-monetary benefit. Australian workers, as viewed by the coalition, are so undeserving that not only should they be denied award and enterprise bargaining agreed minimums, they should also be denied one of the most basic legal protections recognised in our legal system, namely that of proportionality. Proportionality is at the heart of industrial relations, particularly when you look at how the bargain is struck.

The coalition of the cruel, let's say, continues on what can only be described as industrial wreckage through this legislation. One of the really poor parts of this scheme devised by the coalition to deprive Australian workers of their rights and protections is the requirement that individual flexibility arrangements be evidenced in a signed genuine needs statement. This statement has the effect of rendering employees legally complicit in their own demise: The documentary proof by which employers can waive away the Fair Work Commission and legitimise what can only be described as very poor conduct to rob workers of their penalty rates.

This bill should not be allowed to pass when you consider the right of entry provisions within it. It creates a mechanism by which individual workers can contract away significant monetary entitlements in circumstances which are not safeguarded by requirements such as proportionality and particularly where an employee's capacity to meaningfully engage with unions as those best placed to advise on the legality, or otherwise, of the proposed individual flexibility arrangements is compromised. If the Fair Work Amendment Bill is passed, the proposed amendments to trade union rights of entry, along with the individual flexibility arrangements, will have that precise impact. Part 8 of Schedule 1 of the bill deals with the right of unions to enter a workplace to hold discussions. Presently, there is no requirement that an enterprise bargaining agreement must be in place before a relevant union can enter a worksite. Current section 484 provides that a union official who is a permit holder is entitled to enter a workplace for discussions or interviews with employees or TCF award workers in cases where the union is entitled to represent the employees and where the employees wish to participate in those discussions. That is quite usual fare: if you want a union in the workplace and the person is an appropriate permit holder, you should be able to have an open and fair discussion about your entitlements and what the bargain might look like.

However, proposed section 484(1) provides that in order for a union to enter a workplace for the purposes of discussions, a union must also be covered by an enterprise agreement that applies to the work performed on the premises. What that means is that in circumstances where the union is not covered by an enterprise agreement at the workplace, proposed subsection 484(2) provides that a union official is only allowed entry for discussions, where the union has been invited to send a representative to the workplace by a member or prospective member who works at the premises and where the Fair Work Commission has certified that invitation.

This is a coalition that wants to ensure workers do not get fair representation or fair information; the coalition wants to ensure a lack of knowledge about the industrial agreements employers want them to sign. The reality of the combined effect of the amendments to individual flexibility arrangements and the union entry provisions is, in fairness to the coalition, a very restrictive provision which many workers we know will never avail themselves of the certified invitation procedure. It is designed that way

It is one of those really harsh ways that the coalition government choose to treat workers. What they cannot achieve in one way they will achieve in another by ensuring that the workers cannot hear the fairness or unfairness of an agreement because they will not avail themselves of the process.

We should be gravely concerned and subject this to greater scrutiny than any bill, because it is about doing away with workers' rights at the workplace. The coalition thinking on rights of entry suffers from a range of fatal flaws. The right of entry is not a union right per se. We will hear from those opposite that it is all about unions and their ability to muscle themselves into workplaces—the bogey man that they create all the time. We will hear that from those opposite, but it is a scare campaign designed to intimidate and to ensure workers do not get fair information at the coalface.

The protections can only be meaningfully realised if workers are legitimately and effectively represented in the workplace. Since 1901 in Australia this has been expressed by the recognition of unions as having this role. That is the system and scheme of industrial relations that we have had in this country for a very long time, and those opposite seek to undermine it to the detriment of workers. Of course, under this bill—and according to those opposite—those best placed to advise on the legality or exploitive effects on any proposed individual flexibility agreement are employers. I do not think any reasonable person would believe that. That is why you have independent persons, including unions, who can advise of those affects and how that individual flexibility arrangement might be proportionate, fair and reasonable in all the circumstances. But the coalition do not want anyone to intrude on their march to ensure that the employee gets a disproportionate and detrimental outcome. Not all the circumstances lend themselves to an invitation. The smokescreen created by the non-disclosure provisions demonstrate just how out of touch the coalition government really are. It does make you think that they hark back to the master-and-servant relationship which concentrated and defined the employers of old.

Let me return to the Abbott government and its broken promises—because, quite frankly, this government cannot be trusted on any promise. Those opposite will highlight why this is necessary at the workplace, why they stand for individual flexibility agreements and why they want to ensure workers can benefit from flexible work arrangements, but underpinning all of that is their inexorable drive to ensure that they can reinstate the master-and-servant relationship. When you turn to the single enterprise greenfield agreements, it is not all doom and gloom. Not all of Tony Abbott's election promises were made to be broken—although he broke nearly all of them.

With rest of the year in sight, what better time than now to gift multinationals and mining corporations the three-month termination of bargaining period that they wrote to coalition Santa Claus for before the last election? Proposed section 182(4) sets out a new process for making single enterprise greenfield agreements, because the government have to pay the piper. The government have to provide some outcome to the multinationals that have funded their campaign. They protest about it a lot, but that, quite frankly, is what is happening here. They are serving this industrial relations tripe up in the Senate because they are trying to tell their masters that they are doing a good job on industrial relations. Let me say: big business are deserting you as well because they do not trust you and they do not believe you will be able to provide the outcomes that you have said you will. The point is that the 2012 Fair Work Act review did not recommend this.

Debate interrupted.