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Transcript of press conference: 25 November 2008: Fair Work Bill.

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The Hon Julia Gillard MP

Minister for Education. Minister for Employment and Workplace Relations Minister for Social Inclusion. Deputy Prime Minister 25 November, 2008


3.30PM Tuesday

E&OE Transcript - Press Conference

ISSUES: Fair Work Bill

JULIA GILLARD: Today the Rudd Labor Government delivered on what it promised the Australian people

before the last election. We promised the Australian people that we would end Work Choices and we would

replace it with Labor’s plan to move Forward with Fairness. This is the policy document we took to the

Australian people at the last election and today in the Parliament I’ve introduced this Bill, which implements

the policy we asked Australian people to endorse.

The policy provides a fair safety net for every working Australian. A two-part safety net with 10 National

Employment Standards and then for those Australians who earn less than $100 000 a year, a simple modern

awards that they can rely on. This two-part safety net cannot be stripped away by anyone. At the heart of Work

Choices were statutory individual employment agreements, Australian Workplace Agreements, that could

strip the safety the safety net away without compensation. Take away penalty rates; take away over time

without compensation. Under Labor’s Fair Work Bill, every working Australian will have a safety net he or she

can rely on and that no one can take away.

In addition, Labor’s Bill provides for fair bargaining. Collective bargaining at the enterprise level is good for

employees; it’s good for employers; it’s good for productivity; it’s good for the national economy. It’s a way of

people working out in their workplaces the work arrangements that suit them. Under Labor’s fair bargaining

system, where the majority of employees in a workplace want to collectively bargain, then their employer will

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have to sit at the bargaining table with them. Bargaining will happen in good faith. If there is a breach of good

faith, people will be able to approach Fair Work Australia for orders.

Now, we know bargaining happens around this country all day everyday without the need for any intervention

because people get on with it, they’re used to bargaining and they want to bargain. But Fair Work Australia

will be there able to make good faith bargaining orders should that be necessary.

Agreements that come out of a bargaining process will be the agreement for that workplace if it is approved by

the majority of employees. Employees will have the right to be represented in bargaining, but at the end of the

day what will determine whether or not an agreement is made, is whether the employer agrees to it and the

majority of employees to be subject to the agreement agree with it.

Fair Work Australia will approve agreements and Fair Work Australia will ensure that agreements made at the

enterprise level mean every employee is better off overall as compared with the award. A safety net you can

rely on, a safety net no one can take away, an agreement making stream that must leave you better off overall

than the award.

This legislation also provides for working Australians to take unfair dismissal action should that be necessary.

Now, once again, all round this country, businesses manage their workplace relations, their personnel and

their people properly. Indeed, there’s nothing more valuable to them than their hardworking staff. But on the

odd occasion, things do go wrong and when that happens, employees who have served more than 12 months

in a small business, a business of fewer than 15 employees, or more than six months in a bigger business, will

be able to take an unfair dismissal claim. People who have worked 12 months in small business, six months in

a bigger business, have proven themselves to be good workers. If something goes wrong at work and they are

unfairly dismissed, we believe they should be able to take a claim.

Under Labor’s system, Fair Work Australia will have streamlined hearing processes to deal with these matters

quickly. Employees, if they are successful, will be able to be reinstated or receive compensation of up to six

months’ pay. This is a stark contrast to the Work Choices system, where if you worked in a business of less

than a 100, you could be dismissed on any day for no reason at all and have no remedy.

This legislation provides for people to be represented if they choose to be at work and also provides new

protections for people in their workplace. Whether or not an employee wants to be a member of a union,

wants to engage in collective bargaining, wants to engage in the responsibility of representing others in their

workplace, is entirely a decision for them. Whatever decision they make, this legislation ensures they cannot

be discriminated against for making that decision.

This legislation also creates a brand new industrial umpire, Fair Work Australia. It brings together what is

now a plethora of government agencies, an alphabet soup that working people and employers are supposed to

be able to work through if they need help. Well we know that that’s not working. We want working people and

employers who need assistance to know that there’s one place for them to ring, Fair Work Australia, and it will

be Fair Work Australia’s job to work out who they need to speak to within the organisation.

Fair Work Australia will have a connection with the Fair Work Court, which will have a low-cost informal

dispute resolution section able to offer people the benefit of quick remedies where they need not be legally

represented, or engaged in the filling of mountains of paper work in order to deal with any matter which may

have gone wrong in their workplace. For example, being underpaid under the relevant award.

This is a new era of industrial relations that we believe gets the balance right. But what’s more important is the

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Australian people have endorsed this new system. The Liberal Party brought to this country Work Choices;

industrial relations extremism without mandate. They forced it on the Australian people and the Australian

people, when they had an opportunity to vote, said no. Work Choices doesn’t represent Australian values. It

doesn’t represent what we believe this country should offer working Australians.

At the last election we promised to sweep Work Choices away. Today, we’ve introduced the Fair Work Bill. The

Fair Work Bill does sweep Work Choices away and implements what we promised. The important thing that

we want to hear now, is we want to hear the answer from the Leader of the Opposition to the question that he

could not answer yesterday. The question put to him three times by journalists and three times he refused to

answer it. What does the Liberal Party now say in the face of this Fair Work Bill?

Will they stand in the way of the Australian people who want to get rid of Work Choices and want this

legislation? Will they stand for industrial relations extremism? And particularly, do they still believe that

statutory individual employment agreements that have caused so much harm and swept so many conditions

away from hardworking Australians, that they should be a feature of the long-term workplace relations system

in this country? There’s a decision for Malcolm Turnbull to make and we wait to hear his answer.

Thank you very much and I’m happy to answer questions.

JOURNALIST: What do you say to those thousands of businesses out there who’ve never had dealings with

unions, who now face union officials knocking on their door and gaining entry to their business?

JULIA GILLARD: Well, that characterisation’s not true on the facts. For many a long year in this country,

we’ve had the ability of union officials to enter workplaces to talk to people who are their members, or who are eligible to be their members in non-working time. What we’ve provided for in this legislation is should unions

seek to exercise that ability to enter, they’ve got to comply with very strict conditions. Those conditions are:

you have to be a fit and proper person or you won’t get a permit from Fair Work Australia. When you have a

permit from Fair Work Australia, you have to give 24 hours notice. You have to conduct yourself properly

when you’re on the premises of the employer. The discussions are to be held during non-working time. Right

of entry, as it’s referred to in snapshot, has been a feature of industrial relations in this country for a long time.

Can I say more broadly, and I think it is an important point, we pride ourselves on being a democratic nation.

There are some very important hallmarks of democracy. One of them is universal adult suffrage, that every

adult gets to vote. One of them is an independent judiciary. One of them is a free press; a media that can

report as it sees fit. Another of them is a free trade union movement. And even under conservative

governments in this country, we’ve lectured the rest of the world about free trade unions.

Well, what we’re saying in this legislation is that if a person decides to be a member of a union, then they’re

entitled to be represented by that union and if they want to meet with that union, they’re entitled to do that as

well in non-work time, subject to the strict conditions that I have just outlined.

JOURNALIST: Ms Gillard, you’ve said under protected industrial action you’ve retained that element of Work

Choices where you can’t stop work outside a bargaining period. But you’ve said, although the current

bargaining period concept and terminology will not apply under the new Act. So are you abolishing the

defined bargaining period?

JULIA GILLARD: What we’ve done is we’ve streamlined the paperwork. Work Choices, a mountain of paper,

we’ve got the mountain of paper on display for you, that was the mountain of paper that brought it into being

and then caused a mountain of paper for everybody else who tried to work under it. Under Work Choices, you

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needed to formally notify the start of a bargaining period. Under our system you won’t need to do that. That’s

a recognition …

JOURNALIST: How do you know when it starts?

JULIA GILLARD: Well, when bargaining commences, obviously one party; the employer or the employees

have put to the other the proposition that they should enter an agreement and discussions about that

agreement have started. Now, in recognition of the fact that overwhelming in this country, where enterprises

collectively bargain, they do it voluntarily; they do it by agreement; they’ve done it for many a long year.

There’s no protected industrial action involved. They just get on and do it.

For those workplaces, we want to get red tape off their back. They can just get on and do it and then they

submit their agreement to Fair Work Australia. Fair Work Australia will check it and one of the most

important things it will check it for is to make sure that every worker, subject to the agreement, is better off

overall as compared with the award.

JOURNALIST: Won’t that allow for little, sorry, for a little more flexibility to stop work action?

JULIA GILLARD: No, because if you’re going to take protected industrial action, you need to have a secret

ballot to authorise it. The secret ballot …

JOURNALIST: So if that happens, I know, I’ve had personal experienced this in the last few months, or years.

There’s a certain time when you can do things and when you can’t do things. It will allow workers to maybe be

a little more robust than they should be.

JULIA GILLARD: I want to be clear with you about this. Under our system, you’re happily out there

bargaining, bargaining away. If you get to stage where you are going to take protected industrial action or you

feel you should, then that will need to be tested through a ballot. Fair Work Australia is involved in that process.

So there’s no way that protected industrial action can start without Fair Work Australia being there, making

sure that the ballot processes are right and supervised, making sure that before the ballot processes has start,

people were genuinely trying to seek agreement. So, whilst we’ve got the red tape off the consensual section,

where everybody’s working well, there will be clear definitions of periods in which protected industrial action

can be taken.

JOURNALIST: Just on right of entry, going back to right of entry—you have foreshadowed changes to right of

entry for outworkers in the textile industry. What are they and why have you left that to the Senate but not

include that already?

JULIA GILLARD: Well, Dennis, I think it’s appropriate for us to exercise an absolute abundance of caution

when it comes to outworkers and I would say, historically, it hasn’t been true of recent days and it wasn’t true

when, for example, the current Shadow Treasurer was the spokesperson on workplace relations for the Liberal

Party but you would say, generally, that there’s been bipartisan support for strong protections for outworkers.

I think even people who come to the industrial relations debate with very different perspectives acknowledge

that they’re a different class.

Now, one of the things that makes dealing with compliance matters for outworkers more difficult is often they

are working in or around residential premises. And often they are working under a chain of contracting, where

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the factory gives the work to someone who gives the work to someone, who gives the work to someone, who

gives it to the outworker. We want to make sure in that process that the outworker involved still gets the

ability to see a union if they want to see a union, even though there’s that chain of contracting and they may be

working in a garage, as is common in this industry, associated with a residential premise.

So, if there’s anything we need to do and I’m not necessarily saying there is, but if it appears that there’s

anything we need to do in this area for special protections for outworkers, above and beyond what’s done in

this field, then I flag today we are open-minded about doing that. Of course, there are some very expert people

about the conditions of outworkers. The Textile, Clothing and Footwear Union has a great deal of expertise,

but so would I say, do many members of the fashion industry who want to see regularisation of this industry

and proudly put a ‘No Sweat Shop’ label in the clothes that they produce.

JOURNALIST: Does that mean though that people would be able to, that union representatives will be able to

go to people’s homes?

JULIA GILLARD: Well, no, the Bill provides here that if there is a work area, a work area, that that can be

entered. So to give an example of that, there would be some disability services in this country that provide

respite care for adults with disabilities, where there is the centre where the adults with disabilities live and

undertake activities and there may be, off to the side, a small residence that is provided, a small sleeping area

that is provided for the person who provides, or the people, who provide care for the disabled adults overnight. Now the legislation is quite clear and, legislation has dealt with these circumstances in the past, but

in terms of talking to people, you’re talking about the work premise. Brad.

JOURNALIST: Could go I just go back to that point of right of entry, you made the point that in the past, laws

had allowed union officials right of entry where there were members or eligible members. But isn’t it the case

that under the current laws, those existed over the past few years if you had a workplace, say, that’s entirely

covered by AWAs, for example, unions officials just cannot enter that site?

JULIA GILLARD: Yes, you’re right. If I can explain this to people, obviously, we’re in the realms of industrial

relations law. The circumstances that I described and I did say that they were circumstances that had been

known in Australian industrial law, were circumstances where unions who had eligibility and had members,

could enter a workplace.

It is true to say that Work Choices, so the most recent round of conservative law from the Liberal government,

that Work Choice changed the interaction of industrial agreements. And what it did … in the past, you would

have an award … if you entered, say, in the past, a non-union collective agreement, your award would still

have legal life; your collective agreement would be over the top of it. The union right of entry existed because

of the nexus with the award. Work Choices changed the nature of the interrelationship between industrial

instruments, so that if you made a collective agreement, it completely voided the legal operation of the award

and consequently the right of entry that that nexus enabled.

What we’ve done under this legislation, and we’re moving to a different award system, what we’ve done under

this legislation is we have said we think it’s appropriate that unions, under the strict criteria which we have set

out, are able to enter workplaces. It’s not a function of what is the industrial agreement there. It’s a function of

having members or persons eligible to be members there.

JOURNALIST: Given the current economic times, with an extra three million people who can now access

unfair dismissal, are you expecting a logjam or a rush of people losing their jobs?

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JULIA GILLARD: Certainly not, certainly not. Look, I’ve used this example before and I’ll use it again: when I

was in legal practice many a long year ago, when I was a bit younger than I am now, the firm that I worked for

dealt with a case of unfair dismissal, where a man worked in a bus company. The boss’s dog was allowed to

roam free. The dog bit the employee. The employee complained about it and the employer, instead of chaining

up the dog, sacked the worker.

Now, I think if most Australians heard that story and they’d go, ‘That’s pretty crook’. But under Work Choices,

you know, that bus depot wasn’t somewhere that had more than 100 workers. Under Work Choices, no rights,

no remedy, no ability to have a say, nowhere to go to, that’s it. Now I think in examples like that, Australians

would say to themselves, ‘Well that is pretty crook’ and you should be able to go somewhere and have that

dealt with. Now I think that’s just about reasonableness and fairness in workplaces.

Overwhelmingly, employers in this country do absolutely the right thing by their staff. If there’s an issue about

underperformance, they do everything they can to manage that issue about underperformance, because there

is nothing more precious to them than their hardworking, loyal, trained staff.

JOURNALIST: But you’re expecting more unfair dismissal claims?

JULIA GILLARD: We are creating a situation where people who have been unfairly dismissed will be able to

seek a remedy. I’m not making predictions on the numbers, other than to say overwhelming in this country,

employers do the right thing by their staff. They view them as the best resource their business or company has

and consequently they do everything they can to keep their hardworking staff working for them. But on those,

you know, occasions like the one that I’ve referred to, where some unfairness has been worked then I think it

is appropriate that someone be able to take a claim.

And can I say, I think, when we went to the last election and we campaigned on Forward with Fairness, and

once again let me refer you to it: Forward with Fairness, we campaigned on it day in and day out in 2007. This

said to the Australian people if we were elected, we would ensure workers who are dismissed unfairly were

able to take an unfair dismissal claim. We promised it to the Australian people. We’re delivering it.

JOURNALIST: On another point, your partner Tim Mathieson, has been appointed a men’s health

ambassador by the Health Minister today. How appropriate do you think that is?

JULIA GILLARD: Well it’s something that he’s got an interest in and obviously he’s expressed that interest to

Nicola Roxon. Nicola’s keen to have men from all walks of life publicly raising with others the need for men to

be thinking about their health. Unfortunately, the statistics show that men don’t tend to seek health assistance

when they should. Many men leave it a long period of time, young men particularly, who think they’re

indestructible don’t go to the doctors, don’t get regular checkups, only to find that in later life they’ve got a

major health problem that could’ve been averted if they’d had those checkups. I think Nicola just wants a

variety of voices out there raising questions about men’s health and encouraging men to think about their

health and think about going to the GP.

JOURNALIST: Ms Gillard, how would you describe the degree of risk that employers may put off decisions

about hiring staff? [Inaudible]

JULIA GILLARD: I think that risk is … anybody talking about that risk is in engaging in a fanciful suggestion.

It’s …

JOURNALIST: In the explanatory memorandum mentions that risk.

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JULIA GILLARD: Yes, it also goes through some academic studies and also mentions why those academic

studies are not studies of this version of the law, this Fair Work Bill. What I would say, you know, businesses

around the nation make their hiring decisions on the basis that who they need in their workplace to get

business done. And under our system, a small business gets the full 12 months to assess whether or not

someone fits in. A bigger business gets a full six months to assess whether or not the person they’ve put on is

right for their business.

Someone has worked 12 months in a small business and proven themselves to be a good worker, if they work

six months in a bigger business and proven themselves to be a good worker. Then Labor believes it’s fair that,

should down the track there be some problem, that there is an ability to have that heard in a simple process

that won’t require legal representation, that will be streamlined and will be quick.

JOURNALIST: Ms Gillard, is the Government still committed to the introduction of a compulsory maternity

leave scheme in the next Budget?

JULIA GILLARD: I’ve made statements on this and what I have said is we obviously think paid maternity

leave is very important. That’s why we went to the last election and said if elected, we’d get the Productivity

Commission to work on and to design an appropriate model. The Productivity Commission is, in fact, still

engaged in that work. It did put out an interim report and there was further work that the Productivity

Commission intended to do. Obviously, any proposal that has got money attached to it, that needs to be considered when we shape the May 2009 Budget, will be considered in the Budget context. That is the prudent

thing to do, to be weighing up proposals as we shape the Budget.

JOURNALIST: What sort of economic impact statement and/or forecasts for job losses, or creation, have you

had in relation to this legislation?

JULIA GILLARD: We are relying on the economics that says to us that collective enterprise agreements are

good for productivity. And if you look at the productivity performance of this country, the labour productivity

performance, you would see that the highest years of productivity were kicked off by Labor’s enterprise

bargaining reforms when Labor was last in government.

JOURNALIST: Can you just explain how the NES, when it comes into effect will, compare with the existing

standards? Just say now you have eight days annual leave [inaudible], will be a line by line or a kind overall


JULIA GILLARD: Well the National Employment Standards in this legislation wholly replaced the Australian

Fair Pay and Conditions Standard, as it’s referred to and probably very badly named in Work Choices given it’s

content. So, these 10 National Employment Standards will come in effect on the 1st January 2010. They will

apply to everybody in the workforce. We’ve said consistently that that would occur. We’ve said it in our policy,

Forward with Fairness. We published an exposure draft of these 10 National Employment Standards. We

allowed everybody to have a really good look at them, to make sure that they were going to work and to work

in, more simply, than a lot of the red tape and confusion and problems that resulted from the Liberal Party’s

standard and that happened because the Liberal Party didn’t consult with people about the operation.

JOURNALIST: Is it the case under this new system that anybody earning under $100 000 can no longer have

an individual contract?

JULIA GILLARD: People can always have a common law contract of employment. The powerful, important,

unforgettable difference between common law contracts of employment and the statutory individual

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employment agreements of the Liberal Party is common law contracts build on the safety net. You’ve always

got to get the safety net and then you can get things on top of the safety net. The individual statutory

employment agreements of the Liberal Party are about taking the safety net away.

JOURNALIST: But you could still get that contract if you’re earning under $100 000?

JULIA GILLARD: Certainly. Common law contracts are available to all employees. But the important thing is

whether you earn more or less than $100 000, common law contracts must build on the safety net; give you

better than the safety net. If you earn less than $100 000, that safety net is your award and the National

Employment Standards, and if you earn more than $100 000, it’s the National Employment Standards. Once

again, I’d say an incredibly, night and day contrast to Work Choices, where individual statutory employment

agreements were purposed-designed to strip the safety net away.

JOURNALIST: Do you expect many applications to Fair Work Australia on equal gender pay decisions?

JULIA GILLARD: These provisions have been in some state industrial relations systems, in the wording that

appears in the Fair Work Bill and the experience there has not been one where it’s led to a large degree of

claims. So on the basis of looking at that experience; I wouldn’t anticipate a significant number of claims. But

to the extent that there is a bona fide problem with equal pay for women, then it should be something that is

capable of remedy. Once again, I think working off just common community values, there wouldn’t be too

many people in the community today who would argue for the proposition that there should be a systemic bias

against women’s earnings.

JOURNALIST: On the issue of union involvement and negotiations, you’ve used the term ‘valid majority’. What is a ‘valid majority’?

JULIA GILLARD: A union can be involved in negotiations if it represents a member. I think probably what

you’re referring to is the majority for collective bargaining and the valid majority is more than 50 per cent of

the people who would be the subject of the agreement, were it made. And there are various ways of testing that

majority. Ultimately, though, if it is hotly disputed and people want to test it, it can be tested through ballot


JOURNALIST: Employer groups are arguing you’ve returned too much power to unions that represent only 14

per cent of the private workforce. What’s your argument against that?

JULIA GILLARD: Well, the work that has been done to develop this Bill—every step of the way we’ve taken a

consultative approach. We had a business advisory group work with us, chaired by John Denton from the law

firm, Corrs. We had a small business working group representing small businesses. We had a workers advisory

group. We had a union group also assisting on unfair dismissal matters. We regularly had the National

Workplace Relations Consultative Council meet. We’ve had its subset—the Committee on Industrial

Legislation, which includes representatives of employer organisations and the ACTU, meet for an epic 10 days

in Canberra.

Never before has there been such an opportunity for people to work with and comment on legislation,

workplace relations legislation. To give you the contrast there—the Committee on Industrial Legislation got to

see Work Choices after it was printed when it was too late for commentary.

Now what do I expect to happen today and in the coming few days? I expect some employer organisations to

say this has gone too far; I expect some unions to say it hasn’t gone far enough. What I would say to all of that

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commentary and feedback is the Government believes we’ve got the balance right. Labor believes we have the

balance right and most importantly of all, this is delivering on our promises to the Australian people.

JOURNALIST: How much are you willing to negotiate in the Senate?

JULIA GILLARD: I’m going to make it very clear, I think I’ve made it pretty clear so far, but I’m happy to

make it clear again that we believe this legislation has the mandate of the Australian people. They voted for it

in 2007. Every member of the House of Representatives and every member of the Senate should think about

that. If they vote against this legislation, they’re not voting against something to do with me, or at the end of

the day something to do with the Rudd Labor Government, they’re voting against something the Australian

people voted for in 2007.

What we have said to the Opposition is we understand that there will be a Senate inquiry process. We believe

Senate inquiry processes can play a good role. They give people an opportunity to have a say on technical and

other matters and we will consider the feedback. But what we will say to the Senate is the Senate inquiry

should not become a cobbled excuse for delay. It should be a proper inquiry process; and second, when it

comes to dealing with this in the Senate, we will be saying to Senators of all political parties: they shouldn’t

stand in the way of the Australian people. They should pass this bill.

JOURNALIST: If they do, will you return it immediately?

JULIA GILLARD: Our intention is to see this bill passed. Workplace relations is necessarily a whole system.

Every part of it has a relationship to every other part of it and you can’t, you know, make adjustments in one

part that don’t have ramifications right throughout the whole. We are presenting a bill, we’ve consulted on extensively. It delivers on promises we gave the Australian people. It’s had more technical input from

stakeholders than any other piece of legislation I’m aware of ever coming to this Parliament. Never had

anybody raise with me an example where stakeholders got 10 days to work with the legislation before.

We understand there will be a Senate inquiry process and there may be some matters dealt within that, that

the Government will provide feedback to. But ultimately, we will be saying to this Parliament: this Bill

represents what the Australian people voted for, and consequently, Members of the House of Representatives

and Senators should vote for it.

JOURNALIST: So would you go to a joint sitting to pass it eventually?

JULIA GILLARD: Well, all these things lie before us, but the thing I would be very interested in, we don’t want

to get in front of ourselves, what I’m interested in is the vote at the end of this week in the House of

Representatives and where Malcolm Turnbull will be sitting when that vote’s taken.

JOURNALIST: Is it possible for an agreement … now that agreements can cover relationships between

employees and their union, is it possible to have a clause in the agreement that has some more beneficial right

of entry provision so that unions doesn’t have to give notice or doesn’t need a permit?

JULIA GILLARD: No, the right of entry provisions for the purpose of having discussions with members or

persons eligible to be members is a statutory code. It’s in the legislation. It has the permit and the 24 hours


JOURNALIST: You can’t overwrite that agreement?

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JULIA GILLARD: The right of entry for those purposes. It’s a statutory code, it’s in the legislation. Okay, so I

think we’re probably keen on workplace relations with some questions. Thank you.


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