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Wednesday, 16 September 2015
Page: 7053


Senator GALLACHER (South Australia) (18:20): I also rise to oppose the Fair Work Amendment Bill 2014. My contribution will be in the areas that this bill seeks to address: union workplace access, right of entry, greenfields agreements, strike first, talk later loophole, individual flexibility arrangements, other Fair Work Act recommendations and interest on money held for underpaid workers.

I suppose we could indicate at the outset that paying interest on money in excess of $100 which has been underpaid to workers and which has been kept in trust for more than six months is probably the thing we could agree with. I think most people would think that is pretty fair. If a worker has been underpaid, the Ombudsman has collected the money, the worker is not located as yet and the amount is more than $100 and has been held for six months then interest is due and payable. I am sure interest is gained on the account. It is no different from the accounts that unions operate. Unions will take employers to task for underpayment of wages. In some circumstances, those wages may be paid to the union. The union will operate an account where that money is held in trust. A union member may make their claim and be paid with interest. So it is good to see government acting in the same way as responsible unions do.

The first issue I want to talk about is right of entry. I had a long career as a union official. I think I can remember when the right-of-entry permits came in, but I never actually carried one. I never actually carried a right-of-entry permit. I had about eight organisers and I used to do a regular stock take, asking, 'Where's your permit? Get it to the legal officer. Make sure it's up to date.' But no-one used them. We would knock on the front door and ask to meet the employer. In 99.9 per cent of cases, we would have a meeting with the employer. We would go to the front door of the premises. We would knock on that door, introduce ourselves to the receptionist and seek an appointment with the relevant manager, owner, director or operator of the company. We would sit down with that person and we would talk about why we were there and what we intended to do.

It is true that we were not always well received. But the immediate reaction of an organiser who is not well received, particularly in transport, is not to rush back to their car, get their permit out and say, 'I've got this permit. You've got to let me in.' Their immediate reaction is to think, 'I wonder what the problem is here. Maybe there is an issue here with workplace safety. Maybe there is an issue here with wages. Maybe they are not paying meal allowances or maybe they have incorrectly classified workers. Maybe they are not paying the appropriate penalty rates in the agreement and/or the award.' But their reaction is not to go racing out to get a piece of paper and say, 'You must let me in. You must give me a place to sit in the smoko room and then I will go and tell every worker that if they talk to you I will not look on it favourably.' We never operated that way.

I have not seen the imbalance that this government is talking about. But I was only around for about 22 years. Maybe Senator Bullock, who had a much longer career in this area, will be able to cast some light on whether there was a need to get this bit of paper that gave you a right of entry and apparently gave you power. It gave you nothing. You had to organise. You had to deal with the employer and you had to deal with the workers. So I have seen no evidence of this apparent skewed imbalance in respect of right of entry. I have been here for four years, so maybe in the last four years union officials have got this bit of paper out and it has been working against employers. But I doubt that. I speak on a regular basis with people who work actively in transport, organising employers and workers to get the best results in the workplaces of businesses.

I have not seen this imbalance, but I know that Senator Abetz is very keen on this one issue. I am not sure what experience he has in any sector or industry to do with workplace relations. I know that he is the workplace relations minister and that he has a very strong view on these things, but I also know that it is a very jaundiced view—that there is this evil of right of entry. But, to be fair and practical, if you are going to rely on a bit of paper in Australian workplaces to get the job done, you are not going to do too well.

People go in the front door. They articulate their concern or the objectives of the union. They are either met with an agreement to meet workers or they are shown the door. If they are shown the door, they will probably organise it another way. They may not organise it in the workplace but organise it in the car park or up the street or in the home. That is the reality. I have heard of new officials and delegates who have come off the job to become officials who absolutely thought that right of entry was a gold pass to get in there and tell the boss how to run his business—but nothing could be further from the truth. It is absolute rubbish.

The government claims that unions are too easily able to frustrate the making of greenfield agreements. Well, I love them. If any employer came to me with a greenfield agreement I was done. I would not take three months to write one. That was exclusivity. That was me in my element. The employer would be in on it too, because he would only have to deal with me. He would not have to deal with every other union. So this business here is really about employers making greenfield agreements that only suit them. A greenfield agreement is a wonderful thing. I remember the debates on them within the ACTU and in other places. These greenfield agreements that the government is talking about are ones where employers are shopping around to get a bad deal signed up to by someone with no understanding of what wages, conditions and safety should look like.

There are amendments to extend the good faith bargaining rules to the negotiation of greenfield agreements, and this is a government that talks about getting rid of red tape! Employers and unions will be required to participate in meetings with each other. You are going to legislate for that. My goodness. There is no lack of will to make good agreements in the industrial relations arena. There is no lack of goodwill. There is no lack of unions that are professional and able to articulate the objectives of their membership. Employers have their objectives in making a reasonable return on their investment. When it comes to sitting down and doing that, I have not seen any evidence of where that has failed other than when people are shopping really bad greenfield agreements. But this government will try to legislate so that it will be possible for someone to get a really horrendous greenfield agreement. There are no takers in the whole industrial relations community. No union worth their salt would sign a bad greenfield agreements. But employers will now be able to go to the commission and have one approved. So basically the employer will negotiate for themselves, with really bad conditions and really bad outcomes for the worker, and then get the agreement registered. Then they will have to try to get people to fill the positions. With 800,000 unemployed, they probably will find people to fill those positions, but they will not be productive, good agreements. The sort of agreements we on this side of the chamber sign are productive ones that are good for the worker and good for the employer and are safe while delivering fair outcomes.

I have some experience with the 'strike first and talk later' loophole because a union that I had a strong association with used this initiation of a bargaining period and protected action. But my information is that it was because the employer would not talk and commence negotiations. So in order to get the employer to the table this action was taken. I know it caused enormous concern, not in this government, but in the former government. It caused concern for the Labor government. If you have legislation and you have skilled and smart people and it is legal to do it, people will take their advantages where they find them. I do not resile from the fact that that happened and it was legally permissible under the act. It was done. If it needs to be changed, I am not sure that it is going to change the world that much. People will work their arrangements around it.

I come to the individual flexibility arrangements. Come on—if you look at the transport sector, you cannot drive your truck any faster, because you have things called speed limits. You cannot put any more on its back, because you have weight limits. There are only a certain number of hours in the day, which most transport workers take full advantage of. It is not uncommon for transport workers to work from six in the morning till six at night, five days a week. It is not uncommon for those people to be at work half an hour before their starting time, donating their time to get their van, or truck, or workplace in order. That is not unusual. I have a very close friend, who is an owner-driver, who gets to work half an hour early every day of his working life. He does not seek pay for that. He just likes to be organised before his six o'clock start. On a Friday night he does not finish until 7.30. That is every day—60-plus hours per week.

Where would you get flexibility in that arena? You cannot speed, you cannot overload. You have to have some sustenance during the day, so you have half an hour for lunch and a bit of morning and afternoon tea. The rest of the time you are working. You are on the job, in the truck, looking for a park, looking for a loading bay—they are basically non-existent in a lot of our major cities—and dealing with customers from morning till night. What is the flexibility that we would seek here? I know—we would probably seek the flexibility of giving away a meal allowance or something. We might even look at the flexibility of saying, 'We could go to ordinary time, instead of getting time and a half and double time.' But transport workers will not do that. Most workers paid under industry sector awards or enterprise agreements understand their conditions.

Senator Bullock will go back further than me, but in the second tier agreement in 1988 things were traded off. Morning teas were traded off. Truck drivers traded them off because they used to have theirs on the road. The poor bugger in the yard did not get them at all. So there has been this incessant look at workplaces and at the arrangements of how work is carried out. When workers hear the words 'individual flexibility agreement' their antennae go up. They know exactly what it is about: it is an attack on their take-home pay and conditions. It is removing the ability for them to accumulate enough to sustain their families and, in a lot of cases, their equipment, because in a lot of cases people bring equipment such as vans and trucks to work. These individual flexibility arrangements are an attack on that.

This is very careful, clever legislation. You find out that the employee signs a genuine needs form. You find out that the employer, if he believed he was not doing anything wrong, has a defence. There is a genuine needs form signed by someone who has little power in the negotiation unless they are represented by a union, then if it all unwinds and there is actually a loss of entitlement, we will hear, 'Oh, the employer didn't realise he was doing it, so there is nothing to see here. Move on.' The individual flexibility arrangement has meant that the power has passed from one to the other, and in the exchange of power there is generally the exchange of conditions and wages.

These are not good policies. We know that Work Choices is dead, buried and cremated, but we also know that the business community and those who have castigated this coalition government for being slow on workplace reform and industrial relations are still advocating their case. They would like to see workplaces being opened up and people making agreements that affect other people in the workplace. Because, even if you were happy to give some piece of your employment entitlements to the employer, it is not just you it affects. It goes on to affect everybody else in the workplace, and you start dividing and conquering the workplace. If there are 100 people on an enterprise agreement and everybody has the same conditions, you have to upset 100 people to change that. But if you bring in an individual flexibility agreement, preferably in a small area, you can then start to have some competition between workplaces. Allegedly you will get some productivity gains by getting the same output but reducing the costs in.

These are not good arrangements and they will be resisted by all organised sectors of the workforce. But these people that Senator Abetz is in charge of in his workplace relations portfolio are very skilled at working at the opportunities. They will not go to an organised workplace and try to dismantle that. They try that with the CFMEU at every opportunity, with $80-million royal commissions and the like, but they will not go to a normal, run-of-the-mill SDA, TWU, NUW or ASU workplace and try to dismantle that. They will try to provide a little corner of the sector where there are people who are casual or maybe who do not have English as their first language. They will provide employers with an opportunity, and then it will be up to some unscrupulous employers to say, 'Okay, I can get this deal up. I can get this IFA up. If I can get these people to say that it meets their genuine needs and they are better off overall, and I pretend that I can't count.' The employer would have to pretend that he could not count, if he got a genuine needs form in and it worked out that he could pay less in wages that week. He would have to say, 'I can't really count, but I'll cop this genuine needs form and ride on.'

This just leads to a competition to the bottom. In the sector where I worked all my working life, if you put pressure on rates you put pressure on safety. You will have more accidents and illness, more claims for compo and all sorts of things. In the transport sector, if you put pressure on rates of pay, people will take the opportunity to put more on a truck and will take the opportunity to break the speed limit. We know this because there are about 300 truck related accidents and deaths per year. There have been horrific cases where individual flexibility agreements have been so all-encompassing—they were not termed 'individual flexibility agreements' but they are an example of what can happen—that truck drivers have been on the road and the company has rung them up, saying: 'You need to keep going. The truck is due in to Brisbane, Townsville or Melbourne at a certain time and we will keep ringing you every hour to keep you on the road. By the way, you have signed up to make sure you get this job done.'

I have met individuals who have gone to jail for being involved in accidents where people have been killed. They have broken all the rules; they have broken laws of the road in relation to speeding, drug taking and hours of work. So you do not want to push too much individual flexibility and go for a 'better off overall' agreement in road transport. You should not go that way; you should go completely the opposite way. There are people who will sign up for whatever. They will drive too long, too far and too fast and will use whatever it takes to get them through the journey. When they get paid by the kilometre, it is only the fact that they get 1,000 kilometres up that matters. Sleep does not matter, rest does not matter and the other workers on the road do not matter.

Individual flexibility agreements would be catastrophically dangerous in the long-distance and middle-distance transport sector. Even where there are signed agreements that are good agreements, we know from bitter experience that people will break those agreements, work longer and harder and chase the dollar further. There are often catastrophic consequences. I am sure Senator Abetz does not want to facilitate this outcome. I am sure he is listening to employers who say, 'I just need a little bit more flexibility.' Employers can get all the flexibility they like as long as they pay more, not less. If they pay more than the going rate, people will be enormously flexible. If they offer a few more dollars, people will do the right thing. If they employ more people, people will give them a better outcome in their business.

What we see from bitter experience is that individual flexibility agreements drive conditions and wages down. That is their sole purpose. People bid for work in a very competitive market place. They need to fit wages and conditions to the contract price. An individual flexibility agreement may be a pathway to do that, but it will not be an efficiency in the economy; it will be an inefficiency, because it will unravel. People will fall out of love, as we used to say, and there will claims and counterclaims, with all the disputation that occurs around that.

Individual flexibility agreements are Work Choices under another name. We will always resist that. As long as we on this side of the chamber are here as representatives, we will always ensure that Australians get fair and just workplace conditions.