Mrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | Hansard source

As I listen to the contributions of the Labor members on the Fair Work Bill 2008, I cannot help but feel that a lot of them either have not read it or, if they have, do not really comprehend what it will do to the Australian people in terms of job losses. It seems to me that they always have the attitude that, if you are inside the Labor tent, you can have a job and you matter. But if you are outside the Labor tent and you are in the business of providing yourself with a job and employing people—that is, in small business in particular—you do not warrant consideration; you are outside their tent.

The government used to describe Work Choices as ‘extreme’. That was the adjective that would be inserted in every comment that they ever made. But if Work Choices was extreme then the Fair Work legislation, which has an oxymoron for a title, is downright draconian. The bill goes far further than overturning Work Choices, which was what was taken to the electorate during the last election. There is no doubt in my mind that the omission from the Work Choices legislation of what came to be known as a fairness test, which was in the original reform legislation of the coalition back in the nineties and meant that nobody was worse off, from the time it was dealt with to this point in time, was an error.

It should have remained in the legislation because we are committed to that degree of fairness. I am committed to that degree of fairness. Indeed, I am committed to the concept of fairness all around. But when I see the word used as a political weapon, a piece of ideology, I get very angry.

This bill, in fact, delves back into the pre-Keating industrial relations reform era and returns to the unions the power they have long lusted after. I give credit to Mr Keating as the then Prime Minister and Treasurer before that for having the foresight to see that, in the interests of Australia, something had to be done about industrial relations. There will be people who can remember back to the time when Christmas time, this time of year, was the annual period of strikes, and different unions would take it in turn to strike. You would have people who would ensure that there was no petrol in the bowsers. It was not that petrol was expensive but just that it was not available. If you had an even number on your numberplate, you could get petrol on one day and those with odd numbers could get it the next day.

Then of course we had the ubiquitous postal strikes where you used to consider sending out your Christmas cards around October because you knew that there was a strike on the way. Unions would say, ‘It is your turn now,’ or ‘It’s our turn,’ and on and on it went. What happened is that when we came to power we did in fact bring about reforms in industrial relations. It was a hard period and a hard-fought period and the reforms were indeed ultimately passed with the agreement of the Democrats. That meant that we started to see a period of stability.

This bill repudiates the principle that was adhered to by both Keating and Howard of reining in the overarching power of the umpire. Back then it was the Industrial Relations Commission and now it is Fair Work Australia. But the whole bill is surrounded by smoke and mirrors. It is put up as a modern system. Perhaps it is postmodern. But it is put up as a modern system which it says refrains from returning power to the unions when in fact that is precisely what it does.

Paul Kelly’s article in the Weekend Australian has been quoted by many opposition speakers, and for good reason. In this climate where Minister Gillard has been lauded by all and sundry—and I have to say that I think she has found some very strange bedfellows who, when they wake up in the morning, might find that it was not such a good idea after all—the article has set out the ramifications of this legislation. The heading of the article is ‘IR reforms asking for trouble.’ Aside from setting out just what the bill does, Paul Kelly quotes a brief prepared by the law firm Freehills which points out the new methods of centralising wage fixing across an industry. Freehills is quoted as saying that:

… true non-union agreements are only possible, (1) in workplaces where there are no union members; or (2) where the union chooses not to be covered by an agreement.

Paul Kelly also quoted Peter Anderson, the director of the Australian Chamber of Commerce and Industry, on the way he believes unions will achieve pattern bargaining. The Deputy Prime Minister, as recently as her appearance on the 7.30 Report, has said it will definitely not occur, but in fact it will occur but under another name. Anderson says:

The Government is opening new avenues to multi-employer bargaining with industry-wide arbitration that has not existed before.

If you go to a document prepared by the Parliamentary Library, you will find a section called ‘Issues of concern to employers’. There are 10 such issues listed in their document. It begins with the unfair dismissal provisions. I will return to that in a moment because I think it is one of those issues which really cannot be allowed to stand. The second one, they say, is that:

In a transfer of business, transferring employees will be covered by the old employer’s industrial instruments indefinitely … New employees in the business transferred may also be covered in particular circumstances. But most importantly, a transfer of business includes an outsourcing, restructure or other transaction involving use of assets.

In other words, it is a disincentive for the sale of a business that somebody may (a) have built up or (b) be in need of selling. Because of the times that we find ourselves in they may find they are unable to do so because of these provisions.

The third thing that they say employers will be concerned about is the refusal-to-bargain provisions. The document says:

An employer who is negotiating an enterprise agreement cannot refuse to bargain with a union with one or more members. Furthermore, an employer who does not want an enterprise agreement at all can be compelled to negotiate (but not to agree) if a majority of employees want one.

In other words, the concept of how you undertake your negotiations is again prescribed by the legislation.

Then we have the new concept of good faith bargaining, protected action and arbitration. We know, of course, that the term ‘protected action’ means strike action. And you could well call this provision the Trojan Horse of the legislation because it really does allow a return to centralised wage fixing. The requirement to bargain in good faith and the ability of Fair Work Australia to arbitrate a workplace determination on competing claims if there are serious and repeated breaches of such orders means that Fair Work Australia may arbitrate a workplace determination in enterprise bargaining if strike action—that is, protected action—is causing significant harm to any employee and the employer. So, in a situation where there is a dispute, once again the centralised wage-fixing agency, now Fair Work Australia, will have the power to arbitrate.

We come to point No. 5 as outlined in the library’s assessment of the legislation: compulsory bargaining and arbitration for the low paid. This is precisely what was being referred to by the director of the Australian Chamber of Commerce and Industry. This will allow regulated multi-employer based bargaining for the low paid. There is no definition of low paid; however, it seems to largely mean employees employed on or close to the award. This can potentially be expanded, but that would seem to be contemplated in the legislation and not spelt out. This can lead to an arbitrated resolution by Fair Work Australia of the union’s outstanding claims, which is a fundamentally different type of arbitration than a safety net arbitration in accordance with the minimum wage fixation principles. This could easily turn into massive industry based bargaining and arbitration.

Industries particularly affected are likely to include cleaning, retail, hospitality and child care. In these times of financial turmoil, the hospitality industry is one that is going to be hit very hard. Already we are seeing evidence that people who would normally use restaurants and other food and drink outlets are buying food and taking it home. There is going to be great pressure on that industry. Many people are going to find that they simply cannot cope, but there will be those at the edge who are going to be able to hold out if things do not change too badly for them. But once you impose this situation upon them, whereby FWA can arbitrate, resulting in a payment being higher than the safety net payment, you will see many more proprietors going out the door—and jobs with them.

On this side of parliament we believe that the best thing that a government can create is the environment to assist a person to have a job. To be someone in work is so much preferable to being someone who is out of work and receiving welfare payments. Pride in yourself and pride in your family stems from the ability to work. When this government’s budget was brought down, it predicted that there would be a rise in unemployment of 134,000 people. Subsequent to that, we have had world financial turmoil. Predictions are now that unemployment could rise to six per cent. If we go back to the bad old days of the recession we had to have, in the Keating years, we will remember that unemployment went to over 10 per cent and we had one million people unemployed. If we start to see those numbers realised again in this circumstance, where our financial situation has become very much more precarious than it was previously, we will see a very slow return to work for those people who find themselves out of a job, because the industrial relations structure will mean it is prolonged.

The sixth point that the paper makes is for injunctions to enforce awards in enterprise agreements. A union or employee will be able to obtain an injunction preventing an employer breaching an award or enterprise agreement. Examples could include a union obtaining an injunction preventing a restructure of a business if consultation provisions or redundancy procedures in an agreement were not followed; an employee obtaining an injunction preventing their dismissal if a disciplinary procedure in an agreement was breached; or a union enforcing a status quo provision in a dispute resolution procedure.

The seventh problem that they see for employers is AWAs and ITEAs and what to do with new employees. Utilising individual flexibility arrangements may be a way to go, and that perhaps is the only ray of hope in this legislation—that, subsequently, individual flexibility arrangements may in fact allow for individual agreements. The eighth problem raised is award modernisation. What changes to minimum terms and conditions will result from this modernisation process, especially for employees who are currently award free? Fair Work Australia will also be able to make orders to ensure that an employee does not lose take-home pay as a consequence of award modernisation. How will it be interpreted? How will it be imposed? There are transitional questions dealing with collective agreements, and ITEAs being negotiated will now be subject to the provisions that the act sets out.

The 10th, and very serious, issue is the increased right of entry powers. This is truly where unions are being given their payback. The trade unions spent $15 million minimum to get this Labor government elected, and they want the money back. The way they will aim to get the money back is by seeing their membership increase, by non-union members being forced to pay a fee for negotiations, by a return to their place of influence and by exercising that influence to keep union membership high. Currently, in the private sector only 14 per cent of workers are covered by a union. That is the real aim of this piece of legislation.

I want to deal specifically with the unfair dismissal provisions and in detail with the increased right of entry powers in the little time that I have left. Unfair dismissal became the greatest burden that small business had to bear. They became used to being subject to the ‘go away money’ payments. Disgruntled employees who legitimately should no longer be employed by that employer could start vexatious or any form of proceedings they wished and, because the employer could not afford the time off work or the angst of preparing a case and paying lawyers, the employer would simply pay a lump sum to the employee to go away. This legislation brings that all back.

We said that those unfair dismissal provisions should be gotten rid of for firms of under 20 employees. We took that to two elections. We had a mandate for that. Did the Labor Party acknowledge that mandate? No. And yet they say that they have a mandate to do what they are doing in this legislation. In part, you can argue that they do. But, in a moral sense, how can they ask that their mandate be honoured when they refused to honour the mandate of a previous government? We will again see small businesses simply refrain from employing people; refrain from taking the risk that they will have to pay ‘go away money’.

The increased right of entry provision is an extraordinary provision. It will allow, virtually unfettered, a union to enter any workplace for discussion—and for ‘discussion’ read ‘recruitment’—or for inspection to see if there is a breach. Whatever the reason, they then get access to the records of employees, which they can copy and keep. They can get the records of non-union employees. They can demand documentation. And there is no holding back on the part of the employer, because this legislation gives all the power to the unions to demand those records. How would you feel if you were a small business person or an employee and all your records were handed over with you having no say? Those two parts of the legislation are going to deny people jobs and pass information to unions to which they have no right. They are indefensible parts of the legislation.

There are many parts of this legislation in need of reform and in need of amendment. I have said that it will impede recovery. One can ask this question: how many jobless will be sacrificed on the altar of union power? Here in the Lower House we are impotent to change the legislation, because we do not have the numbers. But we can stand up and say that we are appalled by it. I am pleased to read the comments of the two Independent senators, Senator Xenophon and Senator Fielding, which are basically in accord with many of those that I have made tonight. I hope that we will see some justice for those people who are going to be left out in the cold and that we will not see more people sacrificed—(Time expired)

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