Terri Butler (Griffith, Australian Labor Party) Share this | Hansard source

It is clear from the Fair Work Amendment (Bargaining Processes) Bill 2014 that the government has learnt nothing from the Work Choices debacle of the mid-2000s. Given this bill's very poor construction and the ambiguity within the bill, it seems that the bill really does appear to be nothing more than an attempt to undermine the right to bargain collectively, freely and autonomously and to undermine the right to strike.

Having said that, perhaps people more generous than I would want to give the government the benefit of the doubt on the bill, and for that reason I will be looking very carefully at the outcomes of the Senate inquiry into the bill to see whether or not there is some merit to the changes that are being proposed. But, given the circumstances of the bill being introduced, the timing, and the way the bill has been put together, it does really seem to be much more about perception that substance. It is another attempt to imply that the fair work legislation is somehow the cause of difficulties for labour productivity in this country, which is an issue to which I will return.

But before I do, I want to generally talk about the reasons why I said that the bill was an attempt to undermine the right to bargain collectively, freely and autonomously and an attempt to undermine the right to strike. Those issues go to the heart of one of the very clear differences between Liberal Party and the Labor Party. In the Labor Party, consistently with international law, we believe that there is a right to collectively bargain and that collective bargaining is to be preferred to individual bargaining in the workplace. To the contrary, the Liberal Party has always preferred individual bargaining, and we saw that under Work Choices.

In Work Choices, the Australian workplace agreements were statutory individual contracts that were able to, and did, undermine minimum working standards and conditions in this country. By way of example: 63 per cent of Australian workplace agreements made under Work Choices removed penalty rates, another pet hate of the coalition.

I am sure that members opposite do not necessarily want to be outed as still supporting individual contracts, but if you want evidence of that just have a look at the other fair work bill that is presently before this parliament, and has been for most of the year. The other fair work bill of course seeks to privilege and support their use of individual contracts by changing the individual flexibility agreement regime.

It is unfortunate and regrettable, but the Liberals seem to have learnt very little from their experience with Work Choices and are still pushing the bandwagon for statutory individual contracts, which of course are deeply problematic, and we saw that under Work Choices. We saw the conditions that were stripped away using AWAs at the time. But, on this side of the House, we understand and support collective bargaining. It is also, as a matter of international law, something that should be supported. You might recall that the ILO strongly criticised the Australian workplace relations laws known as Work Choices because of the way that they privileged individual negotiations ahead of collective bargaining.

To explain what I mean when I talk about our international obligations in respect of collective bargaining, I just want to mention a very helpful article, ' Protected industrial action and voluntary collective bargaining under the Fair Work Act 2009'by Shae McCrystal from the Faculty of Law, University of Sydney. To recite the discussion about our international obligations, Shae says:

Australia is bound in international law to respect the right to strike under Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights, as a component of the principles of freedom of association protected by the Constitution of the ILO … and as a component of the obligation to respect the right of workers to organise to protect their economic and social interests in Article 3 of the ILO’s Freedom of Association and Protection of the Right to Organise Convention … obligation is not limited to protection of the right to strike for the purposes of collective bargaining, but extends to recognition of the right to strike for workers to protect and further their ‘economic and social interests’ … Further, Article 4 of the ILO’s Right to Organise and Collective Bargaining Convention, 1949 … requires ratifying States to encourage and promote the full development of voluntary collective bargaining between employers, their associations and workers’ associations. The essential element of this obligation is the promotion of collective bargaining which is of a voluntary nature. This has been found to imply recognition of the autonomy of the bargaining parties.

That is a very good and convenient summary of the international obligations that we have.

In contrast to the international obligations that we have, this is a bill that places fetters on bargaining parties' autonomy and rights to conduct negotiations freely. Again, it harks back to Work Choices—continually trying to regulate what parties have to do when they are bargaining in the workplace. If you want to talk about over-regulation and red tape, think about the prohibited content provisions of the Work Choices legislation at the time. There was a lengthy list of things that parties were not at liberty to include in their enterprise agreements—a lengthy list of restrictions and limitations on parties' autonomy and right to collectively bargain freely. And what are we now seeing with this bill? We are seeing a new obligation, a new box to be ticked when an application is made to the Fair Work Commission to approve an agreement.

Of course parties talk about productivity in their bargaining. But this legislation is not about encouraging productivity measures; it is about finding another piece of red tape for parties to have to go through when they go to the commission and ask for approval of their workplace agreement.

One difficulty with adding in another consideration for the commission to take into account in the bargaining approval process, as my colleague the shadow minister pointed out, is that it can hand a party that does not want a bargain to be struck a veto power. So by refusing to talk about productivity and discuss productivity in the course of bargaining until other issues, such as wage rises, have been dealt with or at all, the employer is effectively adding another roadblock. Obviously, it would be an employer because it is generally unions and workers that are motivated in seeking new enterprise agreements, continuing to build on the conditions and wage rates in existing previous agreements. You are giving a tool to a party who does not want to bargain, to say, 'I'm not going to allow for this box to be ticked,' and it will take away the ability of the commission to approve the agreement. Of course, the real consequence of taking away the commission's ability to approve an agreement is that conditions do not change, pay does not go up and the productivity discussion in and of itself has been used as a tool to prevent those things from happening. It is a fetter on the commission's ability to approve the agreement and that fetter, again, interferes with the rights of the parties to conduct the negotiations as they see fit. Why should they not be able to conduct the negotiations as they see fit?

Another issue with the bill in terms of collective bargaining and the right to strike is the change to the protected action ballot provisions. A protected action ballot is important to the right to strike in this country. We have had protected industrial action in this country since the early 1990s. One thing that happened under Work Choices was the introduction of protected action ballots. Protected action ballots were possible prior to Work Choices, but they became mandated under Work Choices. The provisions said that if you want to exercise your right to strike in this country, with the immunity that you get for protected action—immunity from being sued or fined—then you have to first have a ballot. But you cannot just have the ballot; you have to go to the commission and ask them to give you an order allowing you to have the ballot. That is what a protection action ballot is. I know, having appeared in applications for protection action ballots myself, that it is a process that can be derailed by a party who does not want to bargain or does not want another party to be able to take protected industrial action. And which employer does want their workers to take protected action? Very few of them, I wager.

But, having said that, I think the fact that, as a lawyer, I appeared in protected action ballots demonstrates that they already attract legal involvement and that is a cost to bargaining, a cost to the parties, and a cost to the employer and the workers.

If this bill goes through—and we will see what the Senate says about it; perhaps there is merit to it—on my first reading of it, it seems to me that this will be another opportunity for parties to lawyer up, go down to the commission and pick fights about the nature of the claims and their effect in the event that they are granted. It is a bit nonsensical, of course, because a claim is only a claim. Unless it is actually granted or agreed to, it can have no effect on productivity. But the broader point is that you can readily envisage lengthy affidavit material, trawling through any of the claims that have been made in the course of negotiations for the collective agreement, picking fights over each of them and having lengthy legal proceedings not so that people can take the protected action itself but so they can actually get the ballot and then decide whether as a collective to take the protected action.

In terms of the access to justice issues and the ability for parties to progress through bargaining, it is an opportunity for lawyers to make some money. But it is not an opportunity that will be given to people to continue to move through the bargaining process in an orderly way and in a way that is free from unnecessary red tape.

We hear a lot about unnecessary red tape from the coalition, but making it more difficult to bargain at the workplace, taking away people's international obligations surely is, if nothing else, red tape.

As I said earlier, this is a curious bill. Obviously, the government have had many months to bring in this bill. They have brought it in at the end of the year. The other Fair Work Bill has been before the parliament for months. It is a bit clumsy in the way it has been drafted. But, to me, it also seems to be another example of attempts by some to imply that the Fair Work Act is somehow damaging for productivity. As anyone who paid any attention to the speech of Glenn Stevens, Reserve Bank of Australia governor, in Hobart, this year, would have noted , labour productivity is growing at a faster rate under the Fair Work Act than it grew under the Work Choices legislation. The governor gave labour productivity as an example of something that was pleasing and that sectors were working to improve productivity. The governor told us, in the graph that accompanied that speech, that it is growing at around two per cent per annum. So we know that labour productivity is on the increase. My friend and colleague Josh Bornstein has written an article suggesting that attempts to link the Fair Work Act to some sort of productivity crisis is hyperbole and, with respect, I completely agree with him. What he said was:

The productivity crisis campaign (PCC), which started in 2010, involved an all too familiar pattern: a loud and influential chorus of voices spanning big business, right wing print media and conservative politicians repeatedly trumpeting that IR laws were suffocating productivity and required urgent amendment to introduce greater flexibility.

He asked, rhetorically:

Where was the evidence for all of this? I undertook research to try and understand these concerns. No dice.

Where is the evidence that the Fair Work Act requires some sort of silly tweaking to affect labour productivity? Where is that evidence, given that, as I say, labour productivity has been increasing faster since the implementation of the Fair Work Act then it ever did during the Work Choices era?

The Deputy Governor of the Reserve Bank of Australia, Philip Lowe, made a speech recently to the Australian Business Economists conference in which he talked about what Australia needed to do in order to become a highly productive and great economy. Do you think the Deputy Governor said that the most pressing priority is to tweak the Fair Work Act to change the approval process and to change the protected action ballot provisions? He did not say that, you will be shocked to hear, Mr Deputy Speaker. He said that we needed to invest in human capital. He talked about skills, he talked about knowledge, he talked about our relationship with Asia. He did not say we should fidget with the Fair Work Act. For that reason, I think we should all be very sceptical about this bill.

See this speech in context