Chris Ketter (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to continue my contribution in opposition of the Fair Work Amendment Bill 2014. Avid followers of Senate proceedings would recall that prior to ceasing my comments on the last occasion, I was going through the shameful episode which followed the coalition government's Work Choices legislation. I was also highlighting some of the dangers associated with allowing unscrupulous employers off the leash and allowing them to circumvent award provisions. The Work Choices AWAs were a lesson to us that whenever we consider providing opportunities for employers to circumvent award provisions, we should always ensure that there are appropriate safeguards.

I am under no illusions about the changes to the individual flexibility arrangements. I believe that this is a backdoor way by this government to attack the penalty rates of workers. The workers that I am particularly concerned about are workers who are vulnerable, who are casual employees, who are women, who are children. I am here to talk particularly about workers in the retail industry who have, as I have indicated, been the subject of some of the most egregious examples of abuse through the Work Choices system. It is not just a figment of my imagination. In fact, the Minister for Employment, Senator Abetz, has actually called this issue out. He has made it very clear in media statements that this legislation and particularly these changes to individual flexibility agreements are designed to ensure that workers have the opportunity to trade penalty rates for things such as flexible working hours. I refer to TheAustralian Financial Review article from February of last year. It is very much on the record that penalty rates are really at the heart of the changes that are being made here.

Labor's Fair Work system is fair and equitable for both parties and it is already in place across the majority of enterprise agreements in Australia. In fact, the Fair Work Commission Expert Panel has cited data that demonstrates that the majority of enterprise agreements already provide for what could be described as flexible working arrangements. The whole purpose of enterprise bargaining is to enable workers, usually through their representatives such as their relevant trade union, to sit down with their employer to come up with an enterprise agreement that provides for certain flexibilities. As a former official of our nation's largest union, the shop assistants union, I have experienced the process of negotiating enterprise agreements and listening to employers, both large and small, talk about how they have an interest in providing some flexible conditions. I should make the point that there are very many responsible employers out there who want to do the right thing but our system is such that we must protect vulnerable employees against potential abuse by unscrupulous employers.

The amendments proposed by this government in relation to IFAs reinforce why, when it comes to looking at what this government does, we need to examine the detail very closely. The government is unreasonably proposing that a key safeguard be abandoned when it comes to what can be traded through an individual flexibility agreement. I know that other Labor senators have touched on this point but this is something that I feel extremely passionate about. It goes to the recommendation from the expert panel that, if a non-monetary benefit is being traded for a monetary benefit, the value of the monetary benefit foregone must be relatively insignificant and the value of the non-monetary benefit is proportionate. Despite this clear recommendation from the expert panel, which gave a great deal of consideration to these matters, these clear prescriptions of relative insignificance and proportion are missing from this government's amended bill. That the full recommendation is missing is an alarming reflection of this government's approach to workplace relations and I have already indicated that I believe it reveals the genuine intention behind the construction of this provision, that is, that penalty rates are very much in the firing line in relation to these changes.

I am disappointed that the government seems to be adopting a misleading approach in respect of this provision, because one is being led to believe that the only way in which flexible working relationships can be implemented at the workplace level is through the provision of individual flexibility agreements, when nothing could be further from the truth. I have already instanced the fact that enterprise bargaining negotiations can deal with this issue, but there are also amendments to the Fair Work Act which have led to a situation where employees are able to access and get the benefit of flexible working arrangements without the need to trade off conditions. Employees are eligible to request flexible working arrangements if they are a parent or they have responsibility for the care of a child who is of school age or younger, if they are a carer, if they have a disability, if they are 55 or over, if they are experiencing violence from a member of the employee's family or if the employee provides carer support to a member of their immediate family.

Employers who receive a request for flexible working arrangements must seriously consider that particular request, but may refuse on reasonable business grounds, so it is not necessarily a guarantee of achieving flexible working arrangements. But, in the same instance, an IFA also requires agreement on both sides for a change to be made.

Some of the common provisions which are implemented through this other stream for accessing flexible working arrangements are changing starting and finishing times, part-time work or job sharing, working more hours over fewer days, working additional hours to make up for time taken off, taking rostered days off in half-days or more flexibly, time off work instead of overtime payments, or changing the location of work or the need to travel to work—for example, working from home. These are flexible arrangements which are available under Labor's amendments to the Fair Work Act. They are available to workers without the need for them to trade off conditions, by virtue of accessing individual flexibility agreements.

It is of concern to me—and when we talk about individual flexibility agreements we need to understand this—that there is a very significant power imbalance in the workplace. In the industries that I have talked about, that power imbalance is particularly evident. I talked about the vulnerability of casual employees and the vulnerability of women and children working in a situation where their employer dictates to them many of the aspects of their employment. This is a major concern. One should also understand that many of the individual flexibility agreements that we have seen to date are not necessarily bespoke, in the sense that there is evidence to suggest that they are tailored by the employer to suit the employer. There are in fact pro forma IFAs that are being distributed.

I call on the Senate to reject this legislation. It is fundamentally unfair.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I rise to oppose the Fair Work Amendment Bill 2014 and to make a brief contribution to the debate. As this government legislation stands now, I cannot support it, because, as it reads, it creates the potential for undermining and lessening Australian workers' rights and the safety of workplaces. Specifically, the areas of the bill with that potential are part 4, 'Individual flexibility arrangements', or IFAs, where the legislation creates the possibility of overtime rates, penalty rates, allowances and leave loadings being taken away from vulnerable workers; part 8, where it limits the right of entry of union representatives into workplaces; and part 9, about employee termination, where the Fair Work Commission, or FWC, is not required to hold a hearing or conduct a conference when determining whether to dismiss an unfair dismissal application under section 399A or section 587.

I will be honest: I am doubtful that this legislation will live up to its title of 'fair work'. So today, on behalf of Tasmanian workers, I oppose the passage of this legislation. However, once the leadership of this Senate and of this ministerial portfolio is settled, I would be happy to sit down with our new Prime Minister and his new minister, whoever that may be, and negotiate in good faith for the passage of this legislation after certain changes and guarantees from Prime Minister Turnbull that have been outlined by other crossbench senators, including Senator Xenophon.

I hear the Labor Party's arguments and warnings about this legislation. I think their concerns are legitimate, and this legislation needs to be drastically improved to protect workers' pay and conditions. However, I know that, under the leadership of Mr Abbott and Mr Truss, this conservative government had an aggressive, hostile attitude to Australian workers and their representatives. That makes me less likely to trust this Liberal-National government and its industrial relations legislation.

In recent times, there have been a few key examples of Australians being sacked and replaced by cheap overseas workers. The network of people I will lead to the next election is founded on four key policy principles. The first is food and water security, the second is energy security, the third is national security and the fourth, as always, is Australian job security. This legislation and the Liberal-National attitude towards sacking Australian workers and replacing them with overseas labour could be a lethal combination for our working families, and it attacks the principle of Australian job security.

Senator Nash in her contribution talked about giving dignity and respect to Australian workers. But where was dignity and respect for our workers when 36 Australian maritime workers were sacked and replaced by cheap foreign workers on Caltex's oil tanker Alexander Spirit? There was no dignity and there was no respect for those good people, those hardworking Australians.

Instead of fighting for those workers' jobs, members of the Liberal government became cheerleaders for foreign workers. They were foreign maritime workers who were not required to undergo rigorous security, criminal history and health checks by ASIO, the Federal Police and other government agencies. All Australian maritime workers are required to undergo rigorous security, criminal history and health checks by ASIO, the Federal Police and other government agencies before they are allowed to work on board our ships. That is a reasonable risk management strategy to have in place, given that crews are in charge of vessels like oil and gas tankers, which could easily explode or be made to malfunction, with devastating consequences to the Australian public and our environment. So why would the Liberal government make it easier for overseas crews, with no Australian security or health checks, to operate oil and gas tankers in our coastal waters and ports?

There was no dignity and respect for the 32 Australian workers employed on North Star Cruises in Western Australia who stood to lose their jobs if their boss, Bill Milby, followed the advice coming out of the Deputy Prime Minister's office. I was shocked when I heard that respected maritime businessman, Mr Bill Milby, from North Star Cruises, had been told by an Abbott government official that 'If he wanted to make more money and compete with the foreign competition—after proposed Liberal changes to the Coastal Shipping Act were passed by this Senate—Bill should sack his Australian crew on board his Australian built cruise liner and replace them with cheap foreign workers.' I invited Bill to my Senate office for a chat. Bill repeated what he was told by the staff of the Nationals leader and Deputy Prime Minister. I believe Mr Milby told the truth. But I cannot understand why this Liberal-National government is so keen to kill off Australian workers' jobs and replace them with overseas workers? Is it just an insane hatred of unions and their workers? Does their hatred go that deep that they are prepared to trade off Australian jobs for foreign workers? I think this question has to be asked.

One of the worst examples I have seen of this government's eagerness to sack Australian workers and replace them with foreign labour is in the manufacturing of defence clothing. The situation is described in an email I received from Michele O'Neil, the Secretary of the Textile, Clothing and Footwear Union of Australia. Michele wrote:

Dear Senator,

Further to my email of 7 July 2015, l am writing to update you on the latest developments in our campaign to secure our members' jobs at the Workwear Group's factory in Footscray.

We have been informed that Minister Kevin Andrews and the DM0 have made the wrong decision.

They have decided not to place further orders with The Workwear Group, resulting in the company announcing that our members will lose their jobs in September.

There is still time to change Minister Andrews' mind. Your support and efforts over the last few months resulted in our members still working today.

Applying further pressure on the Defence Minister, urging him to change his decision, could save these 45 workers' jobs.

I have attached a letter addressed to the Minister calling on him to make the right decision this time.

I have to add that it is 'funny' that Kevin Andrews cannot work out the right way to spend $100 million, yet he is in charge of a portfolio that is worth billions of dollars—and he is justifying why he should keep his job! Maybe it is time he went.

Today, I once again call on the new Prime Minister, as an expression of good faith, to show that his government's hostile attitude towards Australian workers has changed and to personally intervene, along with his new defence minister—because the old one should be sacked for the way he has betrayed these workers—and ensure that the factory stays open, that Australian defence clothing manufacturing jobs are secure and that we keep a viable, local and competitive industry for government uniform supply. I will not even go into security.

In his second reading address to parliament, Minister Pyne said:

The measures in the bill will help encourage investment in new projects that are important to the Australian economy by preventing unions from vetoing greenfields agreements.

I am willing to talk about that point with the Prime Minister and his new defence minister. However, I close by making this point. If we want to encourage investment in Australia and maintain Australian workers' wages and conditions, we must: (1) guarantee that Australia's fuel, gas and power are cheaper than our major trading partners so that our manufactures, small businesses and farmers can profitably compete on unfair world markets whilst maintaining the wages and standard of living of Australian workers; (2) legislate to make sure that state and federal governments buy local first in their procurement policy and support local manufacturing, even if it means paying a few more dollars than they do to overseas competitors—and I am talking about our steel making industry and workers; (3) support voluntary national service for our young people, which would allow them to join the military for a year and learn some skills or participate in trade training and apprenticeships. I oppose the legislation before the House.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

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.

Glenn Lazarus (Queensland, Independent) Share this | Link to this | Hansard source

I inform the chamber and the people of Australia that I am deeply concerned about the Fair Work Amendment Bill 2014 and consequently do not support it in its current form. I cannot and will not support any legislation that erodes the rights of Queensland workers or, more broadly, Australian workers.

However, I am also aware of the importance of the business sector in Australia and its role in providing the engine room for our economy. In order to achieve economic growth and restore business and consumer confidence, we need to support business to grow and prosper. A growing business sector equals jobs growth. Jobs growth, however, will not be achieved by removing the rights of workers. It will be achieved by stimulating the economy through growth measures and investing in our people, thereby enabling them to succeed.

Restricting our people's access to higher education by deregulating the higher education sector will not achieve this either. This is another reason why I do not support the deregulation of higher education. It will only result in a substantial increase in the cost of university degrees, which will discourage Australians from seeking to better themselves through education. I am hoping that, under Mr Turnbull's leadership, the deregulation bill never sees the light of day again in any way, shape or form.

The Fair Work Amendment Bill comprises many components. While I feel that most components of the bill will have a negative impact on the rights of workers, some components are actually good and deserve support. Accordingly, I am co-sponsoring a raft of amendments to the bill which will knock out the negative elements and retain the good elements. I should mention that there are probably a range of other positive measures that could have been included in the bill. However, as the bill was developed under the Abbott government, and, as per usual, the crossbench and indeed many sectors of the community affected by it were never consulted in the early stages of its formation, we are now burning the midnight oil to try and fix a bad bill that should never have made its way to the Senate in its current form. My hope is that, under the new Turnbull government's leadership, things will change significantly moving forward.

In relation to the bill specifically, I am supporting the removal of a range of sections or parts to cleanse it of its nasty components. These include part 2 of the bill, which relates to the payment of accrued annual leave on termination. It is my view that workers should be paid accrued annual leave on termination at the appropriate rate. Part 3 relates to the accrual of annual leave while receiving workers compensation benefits. Employees on workers compensation are absent from the workplace through no fault of their own and should not be disadvantaged or penalised by losing accrued leave as a result. Part 4 relates to individual flexibility arrangements. I am of the view that this section has the potential to see vulnerable and disadvantaged workers' rights exploited by employers. Accordingly, it has to go.

Part 6 relates to the transfer of employee entitlements across related businesses. I believe that this will disadvantage employees who voluntarily move across businesses within an organisation's group of brands. Part 8 relates to right of entry by unions into workplaces. I am deeply concerned that this will restrict and hamper unions from undertaking their important work of representing the rights and needs of workers in the workplace. Part 9 relates to Fair Work hearings and conferences. I believe that this will remove the requirement for Fair Work to hear the merits of unfair dismissal applications and decide whether to dismiss or hear the cases. Unfair dismissals are often very murky and require the consideration of Fair Work to fully understand the circumstances around them. Therefore it is imperative that this part be removed to ensure that hearing and conferencing arrangements are retained to protect employees.

In addition, I am co-sponsoring an amendment to part 5, which seeks to deal with the way in which greenfields agreements are negotiated. The amendment will extend the negotiating phase of a greenfields agreement to six months from the current proposal of three months. This will provide the platform to enable both the employer and the union to come together in the hope that they can reach an agreement to commence a new project. I understand there are concerns on both sides regarding the way in which parties may approach the negotiating process. However, the amendment does seek to extend the good-faith bargaining framework. In effect, the amendment will allow both parties more time to reach an agreement and, where the process fails, enable Fair Work to become involved and make a determination.

I am pleased that the crossbench has come together to collectively work through this bill. We as a group are acting in the best interests of our states and our constituents. I believe that the people of Australia will be extremely proud of the results we are achieving in this chamber for workers and, more broadly, for all Australians across the country. I note the good work of Senator Day in putting forward an amendment to the Fair Work bill to increase flexibility around the negotiation of greenfields agreements. While I understand the reasons for Senator Day's amendment, I am concerned that such increased flexibility could result in the exploitation of workers who technically cannot vote on workplace agreements because they are not yet employed. For that reason and various other reasons, I have let Senator Day know that I cannot support this amendment. I will be supporting the opposition's amendment which removes part 7 of the bill relating to protected action ballot orders. My reason for supporting this amendment is that the part does not obligate employers to negotiate before any protected action takes place. There may be scope to rework this part in future to ensure that it meets the needs of employees and employers; however, considerable consultation would be required by both sides in order to achieve this. In summary, I believe that the crossbench has achieved a delicate balance between the needs of the business community and the economy and the protection and retention of workers' rights across Australia.

Joe Bullock (WA, Australian Labor Party) Share this | Link to this | Hansard source

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 9 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.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I want to begin by commending Senator Bullock for his contribution moments before, his understanding and his long-term experience in standing up for workers in Western Australia and with the SDA, the shoppies union as it is affectionately called by its friends. It is an incredible record. He is rightly proud of what he has been able to achieve for some of the most low-paid, most disadvantaged workers in Australia, particularly those in Western Australia. It is a legacy that I know he is very proud of.

This Fair Work Amendment Bill 2014 is nothing more than an attack on the rights of Australian workers and an attack on trade unionism in this country. In this legislation we have part of what is really nothing more than an ideological drive by elements of this government to push a fairly radical world view and a fairly radical view of industrial relations in this country through the prism of what they purport to be fair and reasonable. There is nothing fair about this legislation and there is nothing reasonable about this legislation. What we have is some of the worst elements of previous failed attempts being brought through the back door. Frankly, this type of ideologically driven agenda—in this case against the trade union movement—has really driven this government to the mess that it is in.

When we have 800,000 fellow Australians unemployed—the highest number in 20 years—114,000 more people on the jobless queue since this government was elected and an unemployment rate of six per cent and above for more than a year, you do not need an attack on the rights and conditions of workers. I want to show why legislation like this is so dangerous. There is the recent case of some incredibly exploited 7-Eleven workers that we saw on Four Corners, through the journalism of Adele Ferguson and others on the Four Corners team. In this space we should be having a debate about how we make sure those people are able to access their union, how we make sure that the good work that the unions do and want to do in that space gives them greater protections, how we protect these workers, how we give them more access and how we match databases in places like immigration with those available to trade unions to make sure these workers are able to be protected and stop being exploited.

Instead of having the debate I believe we need to have, here we have a debate about stripping away the rights of these workers, about stripping away the conditions of these workers and about taking away the fundamental conditions they need to have protected. Frankly—and this is what is so worrying—the government is doing this through the guise of being reasonable and saying they are small changes, there are words here and there and it is small bits and pieces.

The Senate Education and Employment Legislation Committee reported on the Fair Work Amendment Bill 2014. Those listening may have an opportunity to pull that off the parliament website. It goes through in detail just how damaging some of this legislation is. It is all driven by the ideological view that trade union representation and participation is something that needs to be destroyed or degraded. I think this ideological position that those on the other side of politics have had for so long has driven us to this situation.

The acting minister for industrial relations, Senator Abetz, has really had this position over a very long period of time. The language has certainly been toned down, there is no doubt about that. I think recognition of the political reality of the view of Australian workers has meant that this government is not prepared to be as frank or honest in its language about what it wants to do, but there is still the intent, the nature, the details, the hidden tricks within the legislation and the small measures that are designed to do so much damage. I think that is what we need to be worried about. This is a continuation of a crusade against employment conditions. It is a continuation of the race to the bottom mentality when it comes to labour standards. Most importantly, this bill will stitch up low-paid workers and make it harder for them to make a decent living.

This flies in the face of the promises that were made before the election. The government promised in proposing amendments to the Fair Work Act that the amendments would not go any further than its pre-election promises and it would implement specific recommendations directly from the 2012 fair work revie The government has broken its promise on both counts. The government is going further than its pre-election promises in a number of places, including, as Senator Bullock eloquently outlined, individual flexibility arrangements, greenfield agreements and right of entry. The government has overstepped its election mandate by using language to disadvantage employees. It is now clear that the government cannot be trusted to honour its most basic promise, which was to implement recommendations from the 2012 Fair Work review without change.

If enacted, workers are going to suffer as a result of so many of the proposals in this bill. There is the language that has been used. There is the idea of some kind of responsible centre that we are going to return to. The details of this bill demonstrate that was never the real intention of this government, because that is not where this bill takes the debate. The idea of the individual flexibility arrangements is so worrying. The reason why they are so worrying is that they are a tool used for a specific purpose for a specific environment at a specific time. They could be used in a scenario that could be a win-win by extending it in the way that this legislation suggests. The devil is always in the detail in these matters. The government is unreasonably proposing that the key safeguards be abandoned. It is the small thing of language.

Senator Bullock talked—and more eloquently with his experience than I will be able to—about greenfield agreements and right of entry. We heard Senator Gallacher as well, a little bit earlier, go through both of those. I am conscious of the time. I wanted to use this brief opportunity to perhaps express some of my personal experiences dealing in this space. Senator Bullock, I believe, talked about his 37 years working in the trade union movement. I spent three weeks working in the trade union movement. There is an opportunity here to explain why it did not go beyond that.

I did a program with the Transport Workers Union—a union that I have been a proud member of for over 12 years now—when I finished my schooling in 2001. It was over the summer period. I thought it was a great experience. I thought I did very well. I thought I was a very impressive model employee for the three weeks that I was there. Frankly—and I said this to Mr Tony Sheldon at the TWU conference recently—I do have a bone to pick, and I will be settling the score in the few minutes I have left tonight! At the end of the three-week program, there were five jobs available at the union. Three people applied. Two of them were given a job. It was the feeling of the union executive at the time that I was not a fit and proper employee of that institution. When I raised it with Mr Tony Sheldon in jest at the conference dinner—I was there as a speaker—he pointed out that the Transport Workers Union, which I have been a member of for 12 years, had to draw the line somewhere and they felt that they needed to draw the line with me. I said to him that I would settle the score one day and that I would take the opportunity—perhaps using parliamentary privilege at some point in time—to be able to explain my case. Frankly, I think I was an amazing employee of that place and I think it was their loss and not mine with their decision not to hire me in the call centre, which was the job for which I applied. Those who know me and have seen my record and my mobile phone use know that a call centre perhaps was the perfect job for an employee such as myself!

This is a bad bill. This is a bill that should not be supported. This is a bill that, at its heart and in its detail, has so many damaging elements that go too far and break election promises. This is the type of bill, the type of legislation, that has got the government into the mess that it is in. I hope that, as part of this somewhat-review that surely will be going on in this government, they realise that pursuing this type of ideological attack against working Australians is not only bad politics—leave the government to make its own bad politics; they can make these decisions themselves—but also bad policy. It is the fact that it is bad policy that worries me so much. There is the trade union royal commission; every piece of legislation they do; the agreements they make in the public sector; what they have done in the manufacturing space—all of that unholy attack on working Australians is doing the government no favours and, more importantly, it is doing Australia no favours.

We have a detailed report that has been assessed and has been analysed.

Debate interrupted.