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Tuesday, 10 March 2009
Page: 1063


Senator HUMPHRIES (4:03 PM) —I want to begin by referring to a campaign that was run during the last federal election. I refer not to the campaign against Work Choices—I am sure that particular campaign will be referred to many times in the course of the debate this week on the Fair Work Bill 2008—but rather to another campaign that was run about the then government’s majority in the Senate.

There was a campaign that was run very hard on the theme that the Howard government had, somehow, hijacked the Senate and, with its majority in the Senate, was abusing parliamentary processes. Members of this place will no doubt recall the campaign that GetUp! ran about saving our Senate, and that was also a very important theme in the campaigns of some of the minor parties and of the Australian Labor Party. At the core of that campaign was the theme that it was an abuse of the Senate for there to be inquiries conducted over a very short period of time without adequate opportunity for the Senate to play its role as the body that might amend, or mitigate or suggest changes to important government legislation.

Why do I mention that in the context of the Fair Work Bill? The answer, Mr Acting Deputy President, is that, in a sense, the government’s ambition for this bill is in conflict with its rhetoric at that time about the need for the Senate to do its job properly. Because, at this point in time, a campaign is being run in the Australian community which is seeking to suggest that this Senate does not have any right or ability to modify or amend the Fair Work legislation which this government has tabled. That campaign has been spearheaded by the Australian Council of Trade Unions. I am sure we have all seen the ads running on television which, in effect, suggest that the Senate must quickly and without demur pass, more or less unamended, the legislation which the government has tabled and which a Senate committee has recently examined.

Members of this place, including you, Mr Acting Deputy President, and me took part in an inquiry of a Senate committee into the Fair Work legislation. That was a very extensive inquiry. It was undertaken over, more or less, the whole of the summer period. It involved some 150-plus submissions and heard from witnesses in most capitals around the nation. It was conspicuous that, in the course of that inquiry, every witness who came before the inquiry suggested that the legislation needed to be changed in some way—every union that appeared before us, every employer organisation that came before us, every academic that came before us and every organisation affected in some way by the operation of the proposed law. Every one of them suggested that changes should be made.

Understandably, people made those submissions in the expectation that the Australian Senate would have the ability to put to the government, and to argue and debate on the floor of this chamber, the validity, strength and appropriateness of those amendments. To be told now by the ACTU that it is our duty to pass this legislation as quickly as possible, and to be told by the Minister for Employment and Workplace Relations that we have an obligation to pass this legislation allowing only technical amendments moved by the government, with great respect, flies in the face of the arguments that the now Labor government ran not much more than one year ago in the lead-up to the 2007 election. It is the duty of the Senate to consider ways in which this legislation might be improved.

In pursuit of that obligation—that right—the federal opposition has announced that it wants to consider amendments in six particular areas. I think most Australians would accept that these areas need further examination and scrutiny. I might say, even the government now accepts that at least some of these areas need to be considered a second time—for example, the provisions dealing with greenfield agreements. When a business is to be established in a new location where there are no existing agreements in place to govern the industrial conditions under which people work, there are, appropriately, rules in this legislation about how to consult with the various potential stakeholders about what the industrial instruments governing that workplace might be. As it stands, the proposed legislation states that, where a business is to be established in a greenfield location, every union which might have coverage of workers in that type of enterprise should be advised about the establishment of that enterprise and given the opportunity to, as it were, bid for the right to be party to agreements negotiated with respect to that workplace. As those who have been involved in such arrangements might be well aware—for example, with the establishment of a new mine, a new manufacturing business or a business which involves a range of different types of workers—a large number of types of workers, and therefore a large number of unions, might potentially be involved in such an enterprise. For that employer to have to identify each of the unions that might potentially be involved in that business, alert each of them to the fact that a business is about to be set up and invite them, in effect, to come to the table to negotiate an industrial agreement to govern the workers at that yet to be established workplace is a major exercise which has the potential to slow down considerably and even hamper the establishment of that new business.

This was an issue to which many witnesses drew attention in the course of our inquiry. It is an issue which now apparently even the Labor government believes has some problems associated with it. I am aware that in the last 24 hours the minister, Ms Gillard, has announced that there will be some changes to these provisions of the legislation. We are not aware of what they will be, but they apparently take account of the fact that a number of comments have been made by business which reflect a great deal of concern about the way in which these provisions will work.

Other provisions understandably give rise to great concern. According to the bill, the law will provide that unions will have access to workplaces even if they are not a party to any agreement affecting employees on that site at that particular time. It was suggested very forcefully by witnesses to the inquiry that this will bring about the potential for demarcation disputes between unions to spill over into particular workplaces and for there to be visits by unions on the basis of attempts to garner members on those sites rather than to investigate any legitimate industrial problem that might occur there.

An extension of that is the further right of union officials in visiting a workplace to examine the records not just of their own members but also of people who are not members of a particular union on the basis that this might in some way be connected with the alleged commissioning of an offence under the workplace legislation. Again, employer representatives have been vocal in suggesting to the inquiry that there is a problem with this. They argue that for a record to be examined without the permission of the employee concerned, because the union claims it has a right to examine that without any order of an industrial body such as Fair Work Australia, represents a fairly serious invasion of the privacy of those individuals whose records are examined. Individual records will potentially contain their medical histories, any issues to do with their behaviour in the workplace and other things that are relevant to that person’s employment. All of that is potentially opened up by such access to records by union officials.

It was put to the Senate committee that these things need to be examined again. The opposition, for one, is determined to pursue those issues. It is insulting and demeaning to the role of the Senate to be told that we are not at liberty to take those issues up and to examine them. Somehow this is defying the will of the Australian people. This is not to say that amendments in those areas in some way violate the mandate which the Australian government sought and obtained at the last election to carry out changes to the industrial relations legislation of Australia.

With respect to right of entry into workplaces and with respect to access to records in those workplaces, it is worth remembering that at the Fair Work Australia Summit in April last year Minister Gillard said very clearly:

… the current rules in relation to right of entry will remain. With the right to enter another’s workplace comes the responsibility to ensure that it is done only in accordance with the law.

The now minister went on to say:

We will make sure the current right of entry provisions stay. We will keep the right of entry provisions.

Again, on another occasion:

We promise to retain the current right of entry framework and this promise too will be kept.

Sorry—it is not being kept! The minister has not kept her commitment in that area. The minister wants to change significantly the right of entry rules that govern workplaces in this country and it is the right—in fact it is the duty—of the Senate to consider whether those changes are appropriate and whether the government, for one thing, should be held to its promises made before the last election. To suggest that we have no such right is absolutely unacceptable.

I want to make it clear that the tenor of the matters which the opposition has flagged as being concerned about in this legislation, the things it wishes to consider and perhaps amend, are, for the most part, matters which represent a departure from the government’s own legislative blueprint for industrial relations reform, and they were laid out before the last election in this document called ‘Forward with Fairness’. Forward with Fairness made it quite clear that there would be no changes to right of entry by unions into workplaces, yet we have before us a proposal to do just that, to change those laws and to make the power of a union official much more significant than in the present law.

There are proposals to include compulsory arbitration where enterprise bargaining fails. People might say, ‘What’s wrong with compulsory arbitration?’ What is wrong is that it is directly contrary to a promise made by the Labor government that there would be no changes in this area, a promise they made when in opposition. Given that they have relied so heavily on their so-called mandate to legislate in this area, it is important to note that they have departed from that mandate in that respect. There is the potential in this legislation to force a party into arbitration—I am talking here about an employer. Where the employer does not want there to be a change in the arrangements, where the employer is complying legally with all of the instruments affecting that particular workplace—any awards or existing agreements—they can be forced into a complex and potentially expensive process of arbitration because other people, unions, representing at least some of the workers in that workplace, demand that that be opened up. I do not believe that that is in the interests of stability and certainty in the workplace. I do not believe it is consistent with the promises made by the Labor Party before it went to the last election.

Let me touch on the question of what the Senate might do in conjunction with these sorts of issues—where there is a clear or apparent departure from the things promised by the Labor Party before the last election. It is an interesting issue because members of this place are very conscious that, when parties go to an election, they make certain promises and, if elected, there is an expectation that they will have not just the will to carry out their policies but also something of a right to go to the parliament saying: ‘Here are our policies. We want to make these changes.’ That principle has been somewhat muddied in recent years. One might argue that, for example, the Howard government elected in 1996 had a mandate to sell Telstra, to repeal the unfair dismissal laws, to make a number of changes, none of which was accepted as a mandate—


Senator Boyce —Labor would have supported those, Senator Humphries.


Senator HUMPHRIES —On the mandate principle, yes, Senator Boyce, Labor should have supported those things. They should have said, ‘Yes, you have a mandate because you promised that before the election.’ Perhaps the best example of a mandate theory failing was the 1998 election where the then Howard government went to the election and said, ‘If you re-elect us, we will put in place a goods and services tax.’ It was the main feature of the 1998 election campaign. The Howard government was re-elected. It went to this parliament and said, ‘We now want to legislate to put in place the GST.’ It is a matter of record that the Labor opposition of the day opposed that legislation. So what a mandate is is not clear. A mandate is a slippery concept.


Senator Boyce —I think it depends on who has the mandate.


Senator HUMPHRIES —It does depend, Senator Boyce, on who is actually implementing the mandate. I see Senator Cameron in the chamber, so it is worth asking the question: what did the unions have to say about the question of a mandate? Do not forget, as I mentioned at the beginning of my remarks, that every union which came in front of the committee during its inquiry said: ‘We want changes to be made to this legislation. We don’t think it is adequate in its present form. It should be changed in this way, that way or the other way.’ So coalition members of the inquiry put to those unions what they thought about the idea of a mandate permitting a government to come forward and demand that this legislation be passed unamended, even if the legislation did not conform with the terms of the promises made before the election. It is significant that Mr Joe de Bruyn from the Shop, Distributive and Allied Employees Association had this to say on that question:

The parliament is master of its own situation. It is entitled to pass whatever legislation it believes is appropriate, and it is not limited to what the government promised prior to the election. If there are ways of improving the legislation, then the parliament should do so.

Even Mr Jeff Lawrence, the Secretary of the ACTU, said on the question of a mandate:

Well, I think it is really a question of the major thrust of the legislation.

What he was saying was that the thrust of the legislation needs to be honoured by the parliament but the detail is a matter over which some argument can occur.

We are faced today with the question of what detail in this legislation we should change. There are two overriding and compelling issues which need to be taken into account when considering such change. Firstly, there are a number of significant departures by this Labor government from what it said it would enact when it went to the electorate in 2007. As a parliament we are entitled, in the language of a party no longer with us, to keep the bastards honest if we feel that the government is departing from what it promised to the Australian people. Secondly, the environment in which we find ours today is one which is far more insecure than it was even 12 months ago, with respect to the creation and preservation of jobs.

As a parliament, we have a duty to ensure that we consider ways in which to enhance the capacity of businesses in Australia to make decisions to continue to employ people and to hire new staff, and that they will do so with a certain confidence and ability to deal appropriately with the needs of their businesses in making those decisions. We want to ensure that businesses have the confidence to continue to offer that kind of employment in their businesses. If we do not consider legislation in that context then we are not meeting the expectations of the Australian people that we will put employment and the creation and maintenance of jobs at the forefront of our minds.