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Wednesday, 16 September 2015
Page: 6961


Senator LEYONHJELM (New South Wales) (12:28): There are 761,350 Australians who are unemployed. Hundreds of thousands of these people are in this position because of the Fair Work Act. If an external force were threatening the livelihoods of hundreds of thousands of Australians, we would declare war on it. But, in this instance, we are doing it to ourselves. The Fair Work Act should be repealed.

People should be free to form a union, even though this essentially involves workers engaging in collective agreement, which would be called collusion if it were done by business people. This freedom is assured through an exemption contained in the Competition and Consumer Act. As such, the Fair Work Act is not needed to allow people to form a union. People should be protected from harm to their health, safety and welfare through the minimisation of risks at work. This protection is provided by workplace health and safety law; therefore, the Fair Work Act is not needed to deliver workplace health and safety. People should not be denied employment just because of the colour of their skin, their gender or their membership of a trade union. Antidiscrimination law combats this and other forms of discrimination, so, again, the Fair Work Act is not needed. But above all, people should be free to offer jobs and others should be free to accept them. The Fair Work Act is in no way necessary for these voluntary agreements to occur and all too often it actively prevents such voluntary agreements from occurring.

The Fair Work Act bans agreements where someone agrees to work for less than $17.29 an hour. Removing this ban would lead to more jobs being offered and more jobs being filled by unemployed Australians. Based on a conservative reading of the shadow Assistant Treasurer's research, more than 200,000 unemployed Australians would be employed within months. The absolute kindest thing we can do for the unemployed is to make it easier for them to reach the first rung on the working ladder. Once they do, they invariably move up further.

The Fair Work Act also bans employment agreements that involve paying more than $17.29 an hour if those agreements do not conform with prescriptive employment regulations called 'awards'. The widely acclaimed move to enterprise bargaining saw the share of workplace awards fall away over the Hawke, Keating and Howard era, but with the award modernisation process brought in by the Rudd-Gillard government, we have witnessed a concerning increase in the share of the workplace subject to this command-economy style awards. Where once awards set the wages of 15 per cent of the workforce, now 19 per cent of workers have their wages set by government. That this recentralisation of wage fixing is not widely known shows that parliamentarians, lobbyists and economic journalists are asleep at the wheel. Even if our system of government is unable to pursue further reform, we must at least defend the reforms of the Hawke, Keating and Howard era.

The Fair Work Act prevents a business person from firing an employee who fails to attend work under provisions euphemistically referred to as a 'right to strike', and the Fair Work Act prevents a business person from firing an employee without the approval of a tribunal under provisions euphemistically referred to as 'unfair dismissal laws'. If business people cannot rely on staff attending the workplace and cannot fire staff without navigating a bureaucratic maze, why will they want to hire them in the first place? Many lament the rise of the machines but do not lament the laws that continue to promote their adoption at the expense of human beings.

Finally, the Fair Work Act grants privilege to unions, including rights to enter private property against the will of the owner, and rights to be a party in employment agreement negotiations irrespective of whether the union enjoys support from employees. The Fair Work Act is a creation of the unions, by the unions and for the unions, and the bill before us shows the continuing handiwork of that ever-diminishing sect.

Part 1 of the Fair Work Amendment Bill 2014 seeks to prevent an employer from refusing an employee's request for an extension to unpaid parental leave unless the employer has given the employee a reasonable opportunity to discuss the request. As it stands, the Fair Work Act simply requires that refusals must be based on reasonable grounds. The Fair Work Act Review recommended inserting this requirement for there to be a discussion, but it did so with next to no explanation after having outlined that there was no problem with the existing provision. This is change for change's sake. It would generate unnecessary compliance and administration. It would also create the possibility of litigation based simply on the inadequacy or absence of a discussion, even if a refusal to extend leave were reasonable. The only people who benefit from this circle of compliance, administration and litigation costs are the thousands of lawyers in government and the private sector who make labour law their living.

The remainder of the bill represents a baby step in the right direction. But the 761,350 Australians who are unemployed need more than timid baby steps. They need the Fair Work Act to get out of the way and they need it now.