Wednesday, 15 October 2008
Matters of Public Interest
I rise today to inform the Senate of a matter of public interest that graphically exposes the deficiencies of the collective-bargaining regime that arose under the former government’s Work Choices laws. This matter confirms the need for a legislative scheme that promotes genuine collective bargaining and fosters good faith industrial negotiations and mutual trust. Since 2005, employees of Cochlear Ltd have been trying to negotiate a collective industrial agreement with their employer. The workers have expressed their overwhelming desire to be represented by their union in those negotiations and to have their union included as party to the agreement. Cochlear Ltd refuses to respect the wishes of its employees. Cochlear Ltd is a global business that holds about 70 per cent of the world market in implant hearing devices. Cochlear is a large exporter. About 40 per cent of its production is exported to the United States.
In 2007, Cochlear was awarded the New South Wales government’s Exporter of the Year Award. As a result of the efforts of its employees, Cochlear is enjoying growth in sales and profits. Cochlear stands to grow even further if its plan to tap the potential of the Chinese market is successful. Cochlear employs about 300 people at its manufacturing plant at Lane Cove in Sydney’s northern suburbs. Ninety per cent of its employees are women from non-English-speaking backgrounds—mainly Chinese, Vietnamese, Cambodian and Filipino. To date, Cochlear’s employees have voted five times to have their employment conditions regulated by a union collective agreement. Two of the ballots on the question of their preferred type of agreement were conducted by Cochlear management, two of the ballots were conducted by the employees’ union—the Australian Manufacturing Workers’ Union—and the fifth ballot was conducted under the supervision of the Australian Industrial Relations Commission.
On each occasion, by resounding majorities, the employees made their preference clear—they wanted a collective union agreement. On each occasion, the company has ignored the wishes of its employees and offered a range of variations on its policy of absolute managerial prerogative. The irony should not be lost on senators. A company whose products have improved the lives of countless hearing impaired people around the world is deaf to its own employees. Attempts by the employees of Cochlear and their union to hold meaningful negotiations with the company have been dashed on the company’s blind ideological opposition to the workers’ desire to be represented by their union. To this end, the company has tried to have its workforce agree to individual common law contracts incorporating a so-called company policy manual that could be unilaterally varied by the company in this non-union collective agreement. The company unsuccessfully applied to the Australian Industrial Relations Commission to have its 2005 collective agreement made under the New South Wales Industrial Relations Act terminated, in order to pressure its workforce into acceding to the company’s demands.
Had the company’s application been successful, the employees’ employment would have been regulated by individual contracts underpinned by the inadequacies of the Work Choices regime’s Australian Fair Pay and Conditions Standard. In a survey conducted by the AIRC, employees of Cochlear, by a margin of 178 to 11, opposed the company’s application to terminate the agreement. Support for Work Choices at Cochlear is at about the same level as it is in the general community. Cochlear’s employees, apart from voting repeatedly against the company’s attempts to deny them a union collective agreement, have also been highly proactive in trying to persuade the company to accept their wishes and their union as their legitimate representative. They have signed petitions, contacted their members of parliament and even taken their case to the media.
For its part, Cochlear has employed a range of tactics designed to discourage its employees from exercising their democratic rights. These have included the usual array of intimidation: threats of dismissal, disciplinary action and disturbing one-on-one interviews that we all know are designed to do nothing other than intimidate. In refusing the company’s application to terminate the 2005 agreement, Commissioner Helen Cargill of the AIRC found that while the workforce at Cochlear are well educated and have relatively good English language skills, ‘It is another thing entirely to be able to bargain effectively with your employer in the circumstances. Cultural differences as well as language difficulties would impact on the ability of the employees to bargain.’ Commissioner Cargill also accepted the evidence before her that the employees’ bargaining power is extremely limited in relative terms and significantly weaker than if the employees were collectively represented. Commissioner Cargill found that termination of the agreement in the absence of agreement among the workforce would be contrary to the public interest.
I now turn to the most disgraceful behaviour of the company so far in this whole saga. It appears to be drawn from the playbook of that most disgusting of American industries—the union-busting industry. On 23 September 2008, an employee of Cochlear, who is also an AMWU delegate, Mr Cuong Nguyen, along with a number of his colleagues visited Parliament House for the purpose of speaking with senators and members about the situation at Cochlear. They simply wanted to advise politicians of the need for industrial relations legislation that provides for an effective collective bargaining scheme that allows for the desire of workers to bargain collectively, for them to be represented by their union and for that union to be given full recognition.
There are senators present in the chamber who may have met Mr Cuong Nguyen. He is an electronics assembler and a gentle and courteous man who stands up for what he believes in. As well as speaking with members and senators, Mr Nguyen spoke with journalists who reported on Mr Nguyen’s statements and the bargaining dispute at Cochlear. Mr Nguyen was on paid leave on the day in question. By the following day, Cochlear management had advised Mr Nguyen that he had been suspended from his job for allegedly breaching company policy by talking to the media. Mr Nguyen had told reporters:
From the last election, we hoped the Labor Government can have some proper laws to give us a democratic right for a union collective agreement.
I think Mr Cuong Nguyen’s employer needs to understand that in Australia we have a democratic right to freedom of speech and to have access to members and senators in this place. Mr Nguyen has been issued with a final warning by Cochlear for exercising his democratic right. This is a disgraceful situation. If it were not so serious, it would be laughable. A written warning was given to Mr Nguyen, which said that Mr Nguyen had undermined the trust that Cochlear had in him as an employee. The truth is that Cochlear trusts none of its employees. It shows them no respect, and it is deaf to their wishes for union representation and the fulfilment of their desire to collectively bargain.
On 24 September, 2008, Mr Cuong Nguyen and his union applied to the Federal Court for an injunction that would prevent Cochlear from dismissing Mr Nguyen. This application was made pursuant to sections 807,793(1) and 791(1) of the Workplace Relations Act. On Thursday, 25 September, Cochlear management representatives interviewed Mr Nguyen at its Lane Cove plant in the presence of two representatives of his union. Mr Nguyen and his union representatives clearly stated at this meeting that, in speaking with members and senators and with journalists, Mr Nguyen was acting in his capacity as an elected union delegate, not as a representative of Cochlear. Mr Nguyen and his union requested that the company immediately reinstate him to his employment and that no further action detrimental to his employment be taken. Later that day, a meeting of Cochlear employees resolved unanimously to call on the company to immediately reinstate Mr Nguyen and to apologise for standing him down.
On Tuesday, 30 September, Cochlear management conducted a further interview with Mr Nguyen. At this interview, Mr Nguyen told the company that he had migrated to Australia from Vietnam because he believed Australia was a democracy that granted its citizens freedom of speech. He stated that he had not criticised the company; he had merely told journalists that Cochlear’s employees wanted a collective agreement negotiated with their union.
On Wednesday, 1 October, the company issued Mr Nguyen with a final warning. The warning stated:
Any further breaches of your terms and conditions of employment is likely to result in the termination of your employment by Cochlear.
On 8 October, as a result of Cochlear’s failure to rescind its final warning to Mr Nguyen, the application for injunctive relief in the Federal Court was amended to include an application for further orders of the court that the company’s policies and actions contravene the prohibitions in the Workplace Relations Act against injuring a person in their employment because of their membership of an industrial organisation and because of their desire to improve their industrial conditions. The application states that Cochlear’s policies and actions are unlawful insofar as they deprive Cochlear employees and Mr Nguyen in particular of their freedom of speech relating to industrial matters of importance to them and deprive Mr Nguyen, his fellow employees and their union of the opportunity to legitimately advance their industrial interests.
The application is due to be heard in the Federal Court on 3 November. I would urge senators who are the least bit interested in seeing that democratic rights are preserved in this country to monitor these proceedings very carefully.
Genuine collective bargaining requires both sides to have equivalent bargaining power and capacity. Australia is a signatory to the International Labour Organisation convention on the right to bargain collectively. Australia has always upheld its obligations under the convention, until the former government began tinkering with our workplace laws, undertaken by former Minister Reith. That is no longer the case. The right to bargain collectively is a fundamental component of the universal human rights that we in the government treasure. But if we confuse these rights with hollow notions about choice, where one party or another is able to treat their obligations under collective bargaining laws as entirely voluntary, then the system is completely undermined.
The right of workers to collectively bargain needs to be matched with an obligation on all parties to negotiate in good faith. This would not be an obligation to agree—merely an obligation to respect the universal right conferred on workers. This obligation is not some arcane technical issue. It is central to the development of respect, cooperation and, ultimately, the productive performance of firms that is necessary to secure the future prosperity of this country.
The situation at Cochlear illustrates clearly the deficiencies of the bargaining regime that applies under the current industrial system. The situation at Cochlear illustrates clearly the workplace culture promoted by the former government—a culture of disrespect, unilateral decision making and victimisation. It is a culture drawn directly from the playbook of the far right of politics. It is now time to break this culture with a fresh start to the laws regulating collective bargaining. It is time to break the culture that legitimises the indecent treatment of working people like Cuong Nguyen. (Time expired)