Tuesday, 5 September 2017
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017; Second Reading
In speaking to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, I'll commence by reflecting on, unfortunately, what it is not, rather than what it is. As someone who played a significant role in the introduction of the Fair Work Act, its provisions and, indeed, the necessity to overcome the Work Choices regime that was introduced by the previous government, I'm well aware of the need to review the provisions of the act and the paucity that this bill itself actually represents. So it was interesting to listen to Senator Rhiannon talk about how minimalist these provisions are, as indeed they are. Senator Lines was just then discussing some of the history in workplace relations matters in Australia over the last couple of decades. I want to take just a moment to give credit to Senator Marshall, who from opposition has put in significant energy to ensure that, in the absence of the government addressing these issues, the provisions of the Fair Work Act are being adequately reviewed through Senate inquiry.
The main thing that this bill is not is an adequate response to a review of the Fair Work Act. It's a drip-feed process. The government drip-feeds a few matters and issues here and there. What the government does not have is a workplace relations policy—no policy at all—because it doesn't want to admit to what its real agenda is. And then, indeed, when we do see elements of that real agenda, such as the onslaught of cuts to penalty rates for Australian workers, it attempts to use the complexity of some of the elements of the Fair Work Act to shield and hide what is really being proposed. So I thought I would commence today by taking a step back and revisiting some of the process issues here.
This bill is a lost opportunity. It is a lost opportunity to adequately respond to the operations of the Fair Work Act. It's not, as the government pretends, reform. Simply removing the review process from the Fair Work Act is not workplace relations reform. Indeed, if we go back—and I questioned this approach at the time—to how the Fair Work Act was proposed to be reviewed, we're going back to the Productivity Commission report on Australia's workplace relations system, which was handed to the Abbott-Turnbull Liberal government on 30 November 2015. It was that long ago: November 2015. At the time, I questioned in my own mind whether the Productivity Commission was the appropriate agency to conduct such a review.
Those who have watched the work of the Productivity Commission—perhaps with one major exception, which this government ignored: paid parental leave—would have seen a fairly narrow economic assessment of the circumstances. Any understanding about the application of workplace relations policy in Australia comprehends that we have this separate system because we understand in Australia that simply relying on the vagaries of economic policy is not appropriate to establish decency within our society and decent and appropriate work for Australians. But, fairly predictably at the time, the government referred the operation of Australia's workplace relations system to the Productivity Commission.
You would expect that a conservative government would have responded to such a report by now, but no. Apart from the drip feed of a few issues such as this one, almost 1½ years after it was handed down, in what has become a fairly standard operating procedure for this government in relation to workplace relations matters we still have no government response to the report—lazy government, distracted government. There has been no government response to a report that you would think would fit fairly neatly within their workplace relations policy space. So the Australian public are in the dark about which Productivity Commission recommendations the government does or does not support. Until the government responds to individual recommendations, all we have is the drip feed that this bill represents. And then we have the pretence that this bill is about more than what it actually is. This is not reform. This is simply dealing with a review mechanism—and indeed not even in the way that the parties had proposed that these issues be addressed.
The Labor opposition has been looking carefully at some of the potential unintended consequences. As other speakers have noted, it seems that the government is prepared to accept some of the amendments to deal with those issues, and they'll be canvassed in a bit more detail in the committee stage debate. In the absence of a workplace relations policy, though, we have seen instead a misrepresentation by this government of how enterprise bargaining operates, within the Fair Work Act, as a shield for their proposed penalty rates cuts. Indeed, the Fair Work Commission's decision in relation to penalty rates fits neatly into the paradigm I was just describing in relation to drawing on the Productivity Commission to reflect on workplace relations policy. Even so, in order to justify and maintain its support for significant cuts to penalty rates, what this government does instead is to completely misrepresent how enterprise bargaining operates within the Fair Work Act.
The best example was yesterday. Since the minister raised this issue in question time yesterday, I thought I would use this opportunity to describe what was wrong, what was inaccurate, what was fallacious about the material the minister was presenting to the Senate, in relation to the operations of enterprise bargaining.
We saw in The Australian yesterday a piece written by Ewin Hannan, claiming 50 hours to cover weekend rates cut. The report itself describes an analysis by the Department of Employment that was submitted to the current Senate inquiry into penalty rates. What hasn't been presented and what needs to be presented is what is wrong with that analysis. Let me refer, for example, to a press release from the SDA outlining some of those issues around what was wrong. It says:
An analysis by the Industrial Relations Minister, Michaelia Cash—
or her department—
is a manipulation of data that deliberately skews the facts and ignores the benefits of Enterprise Agreements for workers.
Why? To shield their cut to penalty rates. SDA national secretary Gerry Dwyer says, 'The report by the minister is fundamentally flawed by using arbitrary dates for her comparison rather than an accurate comparison using dates recommended by the BOOT.' You don't need to only rely on the SDA here. Look at the comment in that article from the ACTU, where it says:
We do not celebrate the fact our system locks in terms and conditions that may be overtaken by the safety net during the life of an agreement.
The minister's analysis doesn't deal with that, because the department simply used arbitrary dates.
Perhaps the biggest misrepresentation this minister continues to make is how enterprise bargaining involves rolling up penalty rates into higher base rates of pay and working conditions. She simply draws comparisons between the Sunday work rate and the award rate without all the other factors, including a higher base rate of pay. The reason they continue to do this is that they want to shield their real agenda about cutting penalty rates and, supposedly, creating more employment by cutting workers' rates of pay.
People who have experienced this government in its earlier forms or the workplace relations policies that have been applied understand where that agenda leads. That agenda leads to the likes of the industrial regime in Victoria under Jeff Kennett: five conditions of employment. Just five. That's part of the history about why most Australian workers moved into the federal jurisdiction. Then they came across Work Choices, and they understood again that the absence of a no-disadvantage test damages workers. So, instead of this minister adequately dealing with how enterprise bargaining operates within the Fair Work Act, we have just one process issue in this bill. Instead of this government having a workplace relations policy that they're prepared to be up-front about and debate, and present to the Australian public at large, we have this drip-feed of piecemeal measures while, at the same time, arguing that Australian workers should lose their penalty rates.
I'm not surprised this government doesn't understand the sorts of issues that workers in retail and hospitality value. Let me read a few of them that are in the agreements that this minister has ignored. They represent things such as improvements to how rosters and hours of work can be changed. They represent guaranteed minimum shifts of work. They represent shorter maximum shifts so that workers can combine their work with their family responsibilities. They represent other types of leaves and support for workers—conditions that those workers have argued for in enterprise bargaining. These are the elements that this minister ignores in the trite analysis that she has allowed her department to present to a Senate committee, and she should be appalled that the quality of that work has been allowed.