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Wednesday, 16 September 2015
Page: 7059


Senator BULLOCK (Western Australia) (18:48): Earlier today I was regaling the Labor Party whip with stories of a life well spent in the service of working people, when she was kind enough to observe that some of my stories may be relevant to opposing the Fair Work Amendment Bill 2014 and suggested that I share them with a broader audience. I should say at the outset that if all the employers in Australia were fair-minded, responsible, reasonable people then there would be little need for all of the industrial relations legislation which practitioners in this area are burdened with on a daily basis. There would be little need, too, for unions to look after the interests of working people.

Unfortunately that is not the world that we live in. In the world that we live in, unions stand as the only organisations dedicated to protecting the interests of working people and ensuring that they get a fair go. Without the trade union movement, workers in this country would be at the mercy of a system that is horribly unbalanced between the power of the employer on the one hand and the ability of the worker to negotiate on the other. To the extent that we need industrial relations legislation, that need is to ensure that there is a balance of those interests. I do not think that this legislation improves the balance. On the contrary, it seems to me that this legislation worsens the balance of interests in favour of the already advantaged group, the employers.

Let me illustrate that through some of my own experience. For the better part of 30 years I negotiated the terms and conditions of employment for employees at the Coles distribution centre in Western Australia. Those negotiations started with a meeting of all the members to establish a log of claims. We would then go off with a delegation of union representatives, delegates from the floor, to negotiate that log of claims with the employers, who would of course have their own set of claims. We would sit down and work out the arrangements for the ensuing three years. Over the course of 30 years I managed to get rates of pay in excess of $350 a week more than the award rate, secure improvements to shift allowances and ensure that shift workers had the right to only have their shifts changed by agreement—which is an important right, so that their method of living is not upset by a unilateral decision by the employer to move them from one shift to another. We secured the nine-day fortnight. We developed a bonus system which enabled workers to—and in fact many workers did—double their ordinary-time earnings on the bonus that we negotiated.

We had some redundancy provisions that I fondly remember, because 25 years ago they sent a chap over from Melbourne to negotiate with me who decided that the best way to negotiate with me was to take me out and get me drunk. At the end of the night we had a redundancy provision which secured a minimum of 20 weeks pay, four weeks pay for each year of service, an extra week's pay for each year of service if you were over 45, paid out accrued sick leave and paid out pro rata long service leave. We did not go out again. All of these things were built up over time, and I always thought that when members at that site were enjoying wages in excess of $350 a week over-award they should feel comfortable paying the union fees of between $3.85 a week and $8.90 a week—a very modest fee for the service provided over 30 years.

Ten years ago things changed. The company had developed a new warehouse—the old warehouse was at Canning Vale and the new warehouse was near the airport. The members were very much looking forward to taking advantage of the new facilities and moving to the new site, we had our members meeting, we had our delegates all revved up and ready to go with the negotiations for the new agreement, and we had our first meeting at which I had the misfortune to meet the most ruthless, unreasonable and unscrupulous employer that it has ever been my misfortune to negotiate against—a man by the name of Earl Hayes. He said he would not be meeting with the delegates because there would not be a vote on the new agreement. The new agreement was for a new site and there were no employees at the new site—it was a greenfield site and the agreement that would be in place at the greenfield site would be the agreement determined by the company.

Shift arrangements were to disappear. Working arrangements were to cover 24 hours a day, seven days a week and people would be rostered onto any of those hours. There would be no shift loadings for the work. People would get an hourly rate for certain ordinary hours of work and all hours, 24 hours a day, seven days a week, would be ordinary. If a person, for example, started their shift at two o'clock in the morning, which would normally be regarded as a night shift, they would be paid, as I recall, a 20 per cent loading for the hours between two and five and that would be it—they would not get a 30 per cent loading on the whole of the shift which they would otherwise have got under their old agreement as a night shift worker; they would just get an hourly-based loading on ordinary hours of work. The nine-day fortnight? Gone. The bonus system? Gone. These were the company's claims—they said, 'Well, you can either accept them and be a party to this agreement or we are just going to do it anyway'. This was the arrangement that existed for greenfield sites under the Howard government. They moved 10 kilometres up the road and they expected all of their employees to go there, and they said there would be no redundancies because every employee would be offered suitable alternative employment. They insisted upon this agreement because it was a greenfield site agreement and they could write their own ticket. We had no option. We went up the road on their terms. Three years later, with a fully unionised site, I got the lot back—the lot. I got the nine-day fortnight back, I got the shift arrangements back, I got the shift penalties back—I got all the penalties back. Mr Hayes joined the great Australian leader, Gough Whitlam, in being fired with enthusiasm.

What we have under this proposed legislation is an arrangement which gives to the employer the right to sit out three months and then write their own ticket on a greenfield site—no proper negotiation, no consultation with employees, just the right to impose their own conditions after waiting a mere three months and then they can go and say, 'Here is our enterprise agreement, look how it compares with the industry standard', which would probably be the award, and 30 years of work goes down the drain. Workers would be compelled to accept conditions that dramatically undercut the conditions enjoyed previously. We cannot allow that to happen; we cannot allow the sorts of arrangements that were foisted on me under the Howard government to be resurrected under this greenfield site legislation so that employers can write their own ticket on terms and conditions of employment and impose them on workers working for the company when perhaps they are just moving 10 kilometres down the road. I am very grateful to Julia Gillard for fixing up that loophole in the greenfield site provisions of the act so that that could not be imposed on us again—so a later government did the right thing in fixing that loophole—but this bill has the potential to take us back to the days when employers could write their own ticket and enforce conditions on employees, reducing conditions irrespective of the wishes of employees, irrespective of a vote, refusing to negotiate. Those days are back under this proposed bill and it must be opposed.

I move on to right of entry. Unlike Senator Gallacher—Senator Gallacher was not long in the trade union movement, only 22 years; I was an official of the union for 37 years—I did use my right of entry. In the 1970s I used to amuse myself by reading the Sunday papers in New South Wales and identifying those shops trading illegally and paying them a visit. I paid a visit to a furniture shop in the Bankstown area. I went in and showed my right of entry and asked if I could inspect their shop registration certificate. The proprietor had an interesting way of dealing with visiting union officials. He went behind the counter and got out an axe—not a tomahawk; an axe. He followed me, briskly, out of the shop waving his axe. Happily outside the door of the shop there was a public phone booth. In those days mobile phones were restricted to Maxwell Smart. I got on the phone and rang the police, and the police attended. I said,'Here I am; I am a union official and here is my right-of-entry certificate. I had been into that shop to ask to see a copy of his shop registration and he chased me out of the shop with an axe.' The policeman said, 'Leave here immediately or I will arrest you for trespass.' Right-of-entry certificates do not do you a whole lot of good but, nevertheless, right of entry is critically important. Every worker deserves to have access to a union official who understands the terms and conditions of employment applicable at their site so that they can ask questions and ensure that their entitlements are being honoured. I do not believe that that right of access should be fettered in any way, aside from a requirement on the union official not to interfere with the conduct of work on the site. But certainly union officials should have access to the lunchroom. The idea that you are restricted to a room next to the boss's office—and I have been subject to this—so that everybody who wants to see the union official has to traipse past the boss's office so they can be identified as a troublemaker and punished later once the union official goes is outrageous. People should be in a relaxed environment and be able to chat with the union official in the lunchroom, have their questions answered and brief the union official on issues that are of concern to them in their workplace so that those issues can be addressed.

The idea that right of access should, firstly, be restricted access to the lunchroom and, secondly, could only happen at the request of an individual is outrageous. That means somebody has to put up their hand and say, 'I am a union member, Boss, and I request that the union comes out here because I've got a problem with you.' In my experience, most people just want their entitlements clarified. They want to ask questions about their award or agreement, to see where the truth lies. They want an independent assessment of what the boss has told them to ensure that they are getting their entitlements. These are not people who want to create trouble; they are just people who want to be better informed as to their rights at work. The requirement that a person has to fess up and say, 'Look, I'm a union member and I request the attendance of a union official because I've got issues,' should not be a requirement that falls on the shoulders of a worker, particularly if there are only one or two union members on the site. That they have to be identified by the boss as the person who has called in the union is just unreasonable.

In my industry, the retail industry, access was a reasonably simple matter. Shops are in shopping centres and they are open to the public. There is a front door and you walk through it, so getting access to a shop is a relatively easy matter. But I have sympathy for other unions, organising union members on remote mine sites in Western Australia where access is not an easy matter, where it is very difficult to gain access to the site, where it is appropriate to advise the employer in advance that the union wants to come on site and where special arrangements do need to be made to facilitate the visit of the union official to the site. As I understand it, this bill proposes to remove that facility as well so that people working on remote sites have very difficult hurdles to jump in order to have access to their union official.

I want to move on to IFAs. These are, as Senator Gallagher said, individual flexibility agreements, not investment facilitation arrangements that are causing so much controversy under the ChAFTA arrangements. I oppose and always have opposed individual flexibility arrangements—full stop. I do not see any need for them. It seems to me that, in the lead-up to the 2007 election, they were little other than a sop to the mining industry, which wanted workplace agreements light. I have negotiated a lot of agreements. Those agreements, in an industry like the retail industry which depends on a high degree of flexibility, embodied the parameters of that flexibility within the agreement. The agreement sets out the broad system of flexibility under which employees work. But there is adequate provision beyond that for further provisions to be inserted into agreements that allow for revocable agreement beyond the parameters of the flexibility set out in the enterprise agreement to be entered into between an employer and an employee.

The basic agreement sets out the broad terms of the flexibility that is on offer and then beyond that the employer and the employee have the right to agree further flexibility, which is subject to the agreement, which is done on a no disadvantage basis and which is revocable by the employee if their circumstances change. An employee may want a particular work arrangement today but find that in six months time their circumstances change and that that arrangement, which is in breach of the basic terms of the enterprise agreement, is no longer suitable to them. So agreements of that nature need to be revocable. They need to be in writing so that there is no argument about them and perhaps there needs to be some notice given so that if all of the employees decide and agree that a particular system will work they cannot all revoke their agreement on the one day and cause chaos within the employer organisation.

All of those flexibilities are available to employers today, by negotiation, without recourse to IFAs. I do not see why they should exist at all. But if they are to exist the expert panel recommended that, to the extent that they involve a trade-off of any monetary benefits, those monetary benefits need to be relatively insignificant and that the benefit flowing to the worker as a result of entering into the individual flexibility agreement needs to be proportionate to the relatively insignificant monetary benefit traded off. That, at least, is some small safeguard against workers, under pressure, entering into agreements that are unsuitable to them. And I have got experience of workers entering into agreements that are unsuitable to them. Under the Western Australian shop award, the 19-day month was a right under the award but it could be given away by individual agreement, so individuals could agree to forgo the 19-day month. There was a day some years ago when Kmart scheduled a special staff meeting in every store in Western Australia. Every employee in every store attended before work. They were all told that the business was doing terribly and that sackings would ensue—there was no alternative—but they could act to save the jobs of their fellow work mates by giving away their 19-day month. By nine o'clock that morning 80 per cent of Kmart employees across the state, being honest, decent people who did not want to see their work mates sacked, had all given away their 19-day month. That is the sort of pressure that can be put on people to enter into agreements that are not at all in their interest. I am pleased to say that there were some amongst the other 20 per cent of people who rang the union and we fixed it.

Finally, I turn to annual leave loading on termination. The national employment standards used to prescribe that leave loading was payable on termination. For that reason many awards did not prescribe that, because no award or agreement could be less than the national employment standards. To take that away now is unconscionable.