Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

In continuing my remarks on the Fair Work Bill 2008, I will outline the 10 basic standards that will be included to protect Australian workers. First is the right to work a maximum ordinary week of 38 hours for full-time employees, with appropriate remuneration for overtime. Second is the right to observe all prescribed public holidays and to refuse on reasonable grounds a request to work on these days. Third is the right to request flexible work arrangements for workers with caring responsibilities for children not yet in school, allowing our nation to balance the important demands of family with the needs of paid employment, rather than treating an employee’s family responsibilities as a secondary or cumbersome consideration.

Fourth is the right to access up to 24 months of unpaid parental leave upon the birth or adoption of a child, thus allowing families the critical time needed to care for our nation’s children without having to sacrifice job security in the process. Fifth is the right to access leave in times of need by uncapping the paid carers leave limit of 10 days, by extending compassionate leave to casual employees, by simplifying and consolidating the rules for leave-taking and by enabling some workers to be paid out for some personal leave whilst always retaining a reasonable balance for future needs.

Sixth is the right to access four weeks a year annual leave for each full-time employee, with the capacity to cash in any part of this leave as long as four weeks leave remains in balance. Seventh is the right to be of service to our community by taking unpaid leave to participate in eligible volunteer work. Eighth is the right to accrue long service leave under nationally consistent guidelines. Ninth is the right to receive written notice and reasonable redundancy provisions upon termination of employment for employees outside of small business. And, finally, 10th is the right to receive from your employer information about your entitlements under the Fair Work Bill through an information sheet that will be a requirement for all new employees.

These standards lay the foundation for security for both employees and employers alike and allow our nation to move forward with certainty—no longer the fear, no longer the imbalance, no longer the powerlessness. These standards ensure that Australian workers can build lives, purchase homes, raise families and enjoy leisure time without the spectre of Work Choices to leave them feeling vulnerable. Vulnerability can only ever feed instability and instability will only ever cause harm to productivity and growth.

The security reintroduced in the Fair Work Bill is further enhanced in an additional safety net: modern awards that build on and complement the National Employment Standards by enshrining an additional 10 areas of employment. The modernisation of the award system will cover wages and classifications, penalty and overtime rates, work arrangements, leave related matters, superannuation, allowances and dispute resolution. The modern awards will ensure that those earning under $100,000 per annum, indexed annually, are protected, with certainty and clarity around the conditions of their employment, with those earning over $100,000 per annum being free to negotiate outside the awards whilst retaining important protections. These awards will be kept relevant and fair through four-yearly reviews. This ensures no award is allowed to become outdated, stagnant or irrelevant to its industry, locking employees into a set of conditions that no longer reflect the reality of their employment.

Another major area where the Fair Work Bill shows a striking movement away from the dark days of Work Choices is through the recognition of the importance of freedom of association. The former Howard Liberal government would have had us believe that the union movement was the death of economic growth and prosperity, that unions brainwashed and controlled everyday Australians and worked with the sole purpose of undermining an employer’s viability. Far from this fairytale, the reality is that the right to appoint another person to represent you in agreement negotiations, whether it be a union or even just a colleague, is the surest way of representing the needs of employees whilst balancing them with the needs of employers and is by far the best way of gaining a mutually agreeable, workable and sensible enterprise agreement.

Under the Fair Work Bill, employees will always retain the right to be represented in bargaining discussions. They will always retain the right to have a member of the union meet with them in their workplace during non-work hours, which in turn enables employers to run their businesses without undue interference. Employees will retain the right to take protected industrial action, whilst employers can operate in an environment of certainty knowing that inappropriate industrial action will not be permitted. And, most importantly, employees never need fear recrimination for their decision to either associate with or not associate with a union. This brings the choice back to the individual, where the choice should always have been.

Let us bring our industrial relations system back to a footing of open, productive and genuine bargaining in enterprise agreements. Let us remove the power and the fear and restore the players to the level playing field, to the unbiased rules and the impartial umpiring. With the Fair Work Bill comes such a playing field for bargaining. Gone is any distinction between union and non-union agreements. So long as a clear majority of employees agree to the proposed enterprise agreement, no judgments should be made about how they have chosen to be represented. The only judgment will be whether an agreement maintains all the necessary, fundamental conditions of employment and has been reached in good faith.

Good faith, a simple, common-sense approach to discussions between two parties, has often been sorely missed in our workplaces in recent times. But not for much longer. The Fair Work Bill sets out the requirement to bargain in good faith. This includes requirements on both sides, such as holding meetings at reasonable times so that people are able to attend and contribute; disclosing relevant information; giving genuine consideration to the proposals of each side; providing valid reasons for refusal; and conducting oneself with fairness. One would hope that such requirements would be the natural habits and inclinations of people when involved in any negotiations. However, such is the case that where one party has much to gain and the other has much to lose, good faith must be ensured through legislation.

I would particularly like to note, in my support for the Fair Work Bill, that the new system will reverse one of the most contentious parts of the old Work Choices: the capacity for employers with fewer than 100 staff to terminate employment on the grounds of ‘operational reasons’ without proper redress. This highly unpopular move sought to destabilise workplaces all over the nation and saw scores of employees either dismissed or sacked and then offered their old jobs back under new, normally less generous conditions. Under the Fair Work Bill, such controversial power is removed and replaced instead with sensible qualifying periods. An employee in a workplace with fewer than 15 staff can make a claim for unfair dismissal after serving 12 months. For employers with more than 15 staff the qualifying period will be six months. These changes reflect the common-sense approach that after six to 12 months an employer will no doubt know if the employee is suitable and if their business will have the capacity to retain its current staff. Its staff, likewise, are rewarded for their loyalty by being offered a sense of job security.

In addition to the inclusion of qualifying periods, the process for making a claim for unfair dismissal will also be streamlined and simplified, allowing claims to be dealt with in a more informal conference style setting whilst still retaining all the elements of natural justice. This measure, as well as many others in the National Employment Standards and modern awards, is particularly important to securing the role of women in the Australian workplace. The right to access flexible work arrangements, parental leave and more accessible carers leave allows women to build and care for their families without having to compromise their job security and career aspirations. Very importantly, unscrupulous employers would no longer be able to use ‘operational reasons’ as the basis upon which to remove from the workplace women who are starting a family or who have family commitments. Although, fortunately, this is a situation that does not arise frequently, I have to say from personal experience that it still happens in Australian workplaces today. It is still a reality, but it can now be effectively eliminated under the new measures proposed in this bill.

And now for the umpire—the one who ensures that all sides play by the rules and that integrity is upheld for the sake of all players. Under the Fair Work Bill seven government agencies will be amalgamated into one, simplifying the process of maintaining fair agreements in properly functioning workplaces. Fair Work Australia will be a one-stop-shop for Australian workers, handling minimum wage settings, variation of awards, oversight of bargaining and industrial action, approval of agreements and dispute resolution.

In contrast to Work Choices, Fair Work Australia will be able to exercise its powers in relation to dispute resolution at the request of one party, rather than requiring both parties to agree. It will act as a mediator, conciliator and arbitrator where authorised by the act. Its members will be appointed by merit and extensive bipartisan consultation will be conducted prior to appointment. In addition a fair work division of the Federal Court will act as the judicial arm of Fair Work Australia and will handle all disputes that cannot be settled by the Fair Work Australia process. It will be simple and straightforward. Costs for accessing this service will be affordable, keeping it within reach of all Australian workers, and it will operate in a more informal, common-sense manner so that natural justice is achieved for all.

A Fair Work ombudsman will be engaged as a related but wholly independent statutory agency. Its focus will be on education, investigation and enforcement, ensuring that not only do workplaces understand the new system but they are able to comply easily and fully with its requirements. Such sensibility in the handling of industrial relations through simplified, streamlined, low-cost and integrated approaches to maintaining cohesive workplace relations will set this legislation apart from its predecessor and restore the Australian industrial relations systems to a position of fairness, honesty and integrity but with improved checks and balances.

I extend my wholehearted support for the Fair Work Bill as the change so warmly needed in the Australian workplace. Gone is the overused and under-scrutinised notion of operational reasons and the possibility of losing one’s job without warning. Gone is the trading away of basic employment conditions for next to nothing. Gone is the focus on individual workplace agreements and the power imbalance that can exist when bargaining individually rather than collectively. Gone are the restrictive, inflexible and regimented powers of the old industrial umpire. ‘Gone and good riddance,’ I say, and so should the Australian workers. Now will be the time for securing basic employment conditions for Australian workers through standards and modern awards. Now will be the opportunity for a truly fair and balanced system where one side gets no more or less than it deserves. Now we will see the embracing of a truly national system with a simplified and balanced approach to monitoring and dispute resolution.

I acknowledge that there are still concerns by some members of the union movement and sections of the business community that the legislation either does not go far enough or, indeed, goes too far. However, I truly believe that the Fair Work Bill 2008 is a vast improvement on the old regime. No system can exist for long in a situation of imbalance. The pendulum will always move naturally back towards the middle and this bill offers that movement. I commend the bill to the Senate.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I want to begin by referring to a campaign that was run during the last federal election. I refer not to the campaign against Work Choices—I am sure that particular campaign will be referred to many times in the course of the debate this week on the Fair Work Bill 2008but rather to another campaign that was run about the then government’s majority in the Senate.

There was a campaign that was run very hard on the theme that the Howard government had, somehow, hijacked the Senate and, with its majority in the Senate, was abusing parliamentary processes. Members of this place will no doubt recall the campaign that GetUp! ran about saving our Senate, and that was also a very important theme in the campaigns of some of the minor parties and of the Australian Labor Party. At the core of that campaign was the theme that it was an abuse of the Senate for there to be inquiries conducted over a very short period of time without adequate opportunity for the Senate to play its role as the body that might amend, or mitigate or suggest changes to important government legislation.

Why do I mention that in the context of the Fair Work Bill? The answer, Mr Acting Deputy President, is that, in a sense, the government’s ambition for this bill is in conflict with its rhetoric at that time about the need for the Senate to do its job properly. Because, at this point in time, a campaign is being run in the Australian community which is seeking to suggest that this Senate does not have any right or ability to modify or amend the Fair Work legislation which this government has tabled. That campaign has been spearheaded by the Australian Council of Trade Unions. I am sure we have all seen the ads running on television which, in effect, suggest that the Senate must quickly and without demur pass, more or less unamended, the legislation which the government has tabled and which a Senate committee has recently examined.

Members of this place, including you, Mr Acting Deputy President, and me took part in an inquiry of a Senate committee into the Fair Work legislation. That was a very extensive inquiry. It was undertaken over, more or less, the whole of the summer period. It involved some 150-plus submissions and heard from witnesses in most capitals around the nation. It was conspicuous that, in the course of that inquiry, every witness who came before the inquiry suggested that the legislation needed to be changed in some way—every union that appeared before us, every employer organisation that came before us, every academic that came before us and every organisation affected in some way by the operation of the proposed law. Every one of them suggested that changes should be made.

Understandably, people made those submissions in the expectation that the Australian Senate would have the ability to put to the government, and to argue and debate on the floor of this chamber, the validity, strength and appropriateness of those amendments. To be told now by the ACTU that it is our duty to pass this legislation as quickly as possible, and to be told by the Minister for Employment and Workplace Relations that we have an obligation to pass this legislation allowing only technical amendments moved by the government, with great respect, flies in the face of the arguments that the now Labor government ran not much more than one year ago in the lead-up to the 2007 election. It is the duty of the Senate to consider ways in which this legislation might be improved.

In pursuit of that obligation—that right—the federal opposition has announced that it wants to consider amendments in six particular areas. I think most Australians would accept that these areas need further examination and scrutiny. I might say, even the government now accepts that at least some of these areas need to be considered a second time—for example, the provisions dealing with greenfield agreements. When a business is to be established in a new location where there are no existing agreements in place to govern the industrial conditions under which people work, there are, appropriately, rules in this legislation about how to consult with the various potential stakeholders about what the industrial instruments governing that workplace might be. As it stands, the proposed legislation states that, where a business is to be established in a greenfield location, every union which might have coverage of workers in that type of enterprise should be advised about the establishment of that enterprise and given the opportunity to, as it were, bid for the right to be party to agreements negotiated with respect to that workplace. As those who have been involved in such arrangements might be well aware—for example, with the establishment of a new mine, a new manufacturing business or a business which involves a range of different types of workers—a large number of types of workers, and therefore a large number of unions, might potentially be involved in such an enterprise. For that employer to have to identify each of the unions that might potentially be involved in that business, alert each of them to the fact that a business is about to be set up and invite them, in effect, to come to the table to negotiate an industrial agreement to govern the workers at that yet to be established workplace is a major exercise which has the potential to slow down considerably and even hamper the establishment of that new business.

This was an issue to which many witnesses drew attention in the course of our inquiry. It is an issue which now apparently even the Labor government believes has some problems associated with it. I am aware that in the last 24 hours the minister, Ms Gillard, has announced that there will be some changes to these provisions of the legislation. We are not aware of what they will be, but they apparently take account of the fact that a number of comments have been made by business which reflect a great deal of concern about the way in which these provisions will work.

Other provisions understandably give rise to great concern. According to the bill, the law will provide that unions will have access to workplaces even if they are not a party to any agreement affecting employees on that site at that particular time. It was suggested very forcefully by witnesses to the inquiry that this will bring about the potential for demarcation disputes between unions to spill over into particular workplaces and for there to be visits by unions on the basis of attempts to garner members on those sites rather than to investigate any legitimate industrial problem that might occur there.

An extension of that is the further right of union officials in visiting a workplace to examine the records not just of their own members but also of people who are not members of a particular union on the basis that this might in some way be connected with the alleged commissioning of an offence under the workplace legislation. Again, employer representatives have been vocal in suggesting to the inquiry that there is a problem with this. They argue that for a record to be examined without the permission of the employee concerned, because the union claims it has a right to examine that without any order of an industrial body such as Fair Work Australia, represents a fairly serious invasion of the privacy of those individuals whose records are examined. Individual records will potentially contain their medical histories, any issues to do with their behaviour in the workplace and other things that are relevant to that person’s employment. All of that is potentially opened up by such access to records by union officials.

It was put to the Senate committee that these things need to be examined again. The opposition, for one, is determined to pursue those issues. It is insulting and demeaning to the role of the Senate to be told that we are not at liberty to take those issues up and to examine them. Somehow this is defying the will of the Australian people. This is not to say that amendments in those areas in some way violate the mandate which the Australian government sought and obtained at the last election to carry out changes to the industrial relations legislation of Australia.

With respect to right of entry into workplaces and with respect to access to records in those workplaces, it is worth remembering that at the Fair Work Australia Summit in April last year Minister Gillard said very clearly:

… the current rules in relation to right of entry will remain. With the right to enter another’s workplace comes the responsibility to ensure that it is done only in accordance with the law.

The now minister went on to say:

We will make sure the current right of entry provisions stay. We will keep the right of entry provisions.

Again, on another occasion:

We promise to retain the current right of entry framework and this promise too will be kept.

Sorry—it is not being kept! The minister has not kept her commitment in that area. The minister wants to change significantly the right of entry rules that govern workplaces in this country and it is the right—in fact it is the duty—of the Senate to consider whether those changes are appropriate and whether the government, for one thing, should be held to its promises made before the last election. To suggest that we have no such right is absolutely unacceptable.

I want to make it clear that the tenor of the matters which the opposition has flagged as being concerned about in this legislation, the things it wishes to consider and perhaps amend, are, for the most part, matters which represent a departure from the government’s own legislative blueprint for industrial relations reform, and they were laid out before the last election in this document called ‘Forward with Fairness’. Forward with Fairness made it quite clear that there would be no changes to right of entry by unions into workplaces, yet we have before us a proposal to do just that, to change those laws and to make the power of a union official much more significant than in the present law.

There are proposals to include compulsory arbitration where enterprise bargaining fails. People might say, ‘What’s wrong with compulsory arbitration?’ What is wrong is that it is directly contrary to a promise made by the Labor government that there would be no changes in this area, a promise they made when in opposition. Given that they have relied so heavily on their so-called mandate to legislate in this area, it is important to note that they have departed from that mandate in that respect. There is the potential in this legislation to force a party into arbitration—I am talking here about an employer. Where the employer does not want there to be a change in the arrangements, where the employer is complying legally with all of the instruments affecting that particular workplace—any awards or existing agreements—they can be forced into a complex and potentially expensive process of arbitration because other people, unions, representing at least some of the workers in that workplace, demand that that be opened up. I do not believe that that is in the interests of stability and certainty in the workplace. I do not believe it is consistent with the promises made by the Labor Party before it went to the last election.

Let me touch on the question of what the Senate might do in conjunction with these sorts of issues—where there is a clear or apparent departure from the things promised by the Labor Party before the last election. It is an interesting issue because members of this place are very conscious that, when parties go to an election, they make certain promises and, if elected, there is an expectation that they will have not just the will to carry out their policies but also something of a right to go to the parliament saying: ‘Here are our policies. We want to make these changes.’ That principle has been somewhat muddied in recent years. One might argue that, for example, the Howard government elected in 1996 had a mandate to sell Telstra, to repeal the unfair dismissal laws, to make a number of changes, none of which was accepted as a mandate—

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

Labor would have supported those, Senator Humphries.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

On the mandate principle, yes, Senator Boyce, Labor should have supported those things. They should have said, ‘Yes, you have a mandate because you promised that before the election.’ Perhaps the best example of a mandate theory failing was the 1998 election where the then Howard government went to the election and said, ‘If you re-elect us, we will put in place a goods and services tax.’ It was the main feature of the 1998 election campaign. The Howard government was re-elected. It went to this parliament and said, ‘We now want to legislate to put in place the GST.’ It is a matter of record that the Labor opposition of the day opposed that legislation. So what a mandate is is not clear. A mandate is a slippery concept.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I think it depends on who has the mandate.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

It does depend, Senator Boyce, on who is actually implementing the mandate. I see Senator Cameron in the chamber, so it is worth asking the question: what did the unions have to say about the question of a mandate? Do not forget, as I mentioned at the beginning of my remarks, that every union which came in front of the committee during its inquiry said: ‘We want changes to be made to this legislation. We don’t think it is adequate in its present form. It should be changed in this way, that way or the other way.’ So coalition members of the inquiry put to those unions what they thought about the idea of a mandate permitting a government to come forward and demand that this legislation be passed unamended, even if the legislation did not conform with the terms of the promises made before the election. It is significant that Mr Joe de Bruyn from the Shop, Distributive and Allied Employees Association had this to say on that question:

The parliament is master of its own situation. It is entitled to pass whatever legislation it believes is appropriate, and it is not limited to what the government promised prior to the election. If there are ways of improving the legislation, then the parliament should do so.

Even Mr Jeff Lawrence, the Secretary of the ACTU, said on the question of a mandate:

Well, I think it is really a question of the major thrust of the legislation.

What he was saying was that the thrust of the legislation needs to be honoured by the parliament but the detail is a matter over which some argument can occur.

We are faced today with the question of what detail in this legislation we should change. There are two overriding and compelling issues which need to be taken into account when considering such change. Firstly, there are a number of significant departures by this Labor government from what it said it would enact when it went to the electorate in 2007. As a parliament we are entitled, in the language of a party no longer with us, to keep the bastards honest if we feel that the government is departing from what it promised to the Australian people. Secondly, the environment in which we find ours today is one which is far more insecure than it was even 12 months ago, with respect to the creation and preservation of jobs.

As a parliament, we have a duty to ensure that we consider ways in which to enhance the capacity of businesses in Australia to make decisions to continue to employ people and to hire new staff, and that they will do so with a certain confidence and ability to deal appropriately with the needs of their businesses in making those decisions. We want to ensure that businesses have the confidence to continue to offer that kind of employment in their businesses. If we do not consider legislation in that context then we are not meeting the expectations of the Australian people that we will put employment and the creation and maintenance of jobs at the forefront of our minds.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Rachel Siewert has already made it clear that the Greens support legislation to extract at least some of the gangrenous teeth of the so-called Work Choices legislation, which removed choices for workers. That legislation, which is now in power, was passed during the nefarious years of the Howard government when it had control of both houses of parliament. It is a tribute to the common sense of the people of Australia that they voted to return the duty of watchdog for the people to the Senate. Had the Howard government not got control of the Senate, as it did between 2004 and 2007, this legislation would not have passed into law in Australia and, indeed, there would have been a much better chance that Prime Minister Howard would not have been so unceremoniously kicked out of the seat of prime ministership and out of his own seat of Bennelong. That is now a matter of history, and we are dealing with the reality of the so-called Work Choices legislation and the harm it has done to the rights of workers in this country.

The Greens are taking the strongest stand in this place for working families and workers in Australia. We do so because we are a party that is devoted to equal rights and a fair go in a country where, under the Howard government, previous governments and also this government, the gap between rich and poor has become far too great. I will come to some of the particular matters that we want to address in trying to close that gap and make this country a fairer place. JP Morgan, the great robber baron of the United States, said some 100 years ago that the right balance was a boss getting about 20 times the average wage of workers in the enterprise from which he—because it always was a ‘he’ in those days—was making a fortune. We are out of kilter with that now. The latest figures from the United States indicate that some CEOs are getting 400 times the income of hardworking workers in such industries as manufacturing. It is a credit to the lowness of human avarice and greed that that has happened. It is also an appalling indictment of democracy that it has been so bought by the captains of industry, the wealthy and their lobbyists that we have not had governments with the gumption to stand up for the hard fought for principles of a fair world in which poverty, excessive consumptive and over-the-top greed are attacked where they manifest themselves.

In fact, the planet would be in far safer hands if we had governments who were able to stand up to the power of the super wealthy, which is arguably the greatest bulwark against a fairer world which is able to deal with such onrushing issues as catastrophic climate change, the destruction of ecosystems, the loss of species and the blighting of the hopes of future generations to be able to live on this planet in a way that is comfortable and secure and has the prospect of happiness. That is a bigger debate that we are no doubt going to have later this year when it comes to the need for urgent, serious and sensible legislation to make Australia a leader in tackling the cataclysm of climate change which is bearing down upon us.

The Greens have evaluated the Fair Work Bill 2008 on its merit, and I pay tribute to Senator Siewert and the enormous amount of work she has done, particularly for people who have been unfairly treated under the Howard government legislation. Through amendments, we are going to aim to make the bill a fairer piece of legislation. We think the Rudd Labor government has drifted from its commitment to ensuring that not only the worst but also the discreditable parts of Work Choices are taken away. We see a failure on a wide front to take this opportunity to bring proper fairness into the workplace for workers right across this country. One of the things you would do if you were going to redress this imbalance is make sure that there was a strong umpire to defend the interests of both employers and employees. The Greens want the legislation strengthened so that it is better able to see the arbitration of workplace disputes. In the bill, Fair Work Australia, which is an authority set up to oversee provisions of this bill, has only limited powers in relation to the bargaining of disputes and no general powers to finally determine other workplace disputes outside a very limited aegis, leaving workers and employers no option if they are being wronged but to go to the courts.

That brings me to the second point, which is about collective bargaining freedom. The Greens believe that both employers and employees should be able to bargain over any matters—including, for example, the environmental health and wellbeing of the place in which they work. We are in the extraordinary situation here where it cannot be left to workers and their employers to get together to build an agreement on matters that are outside the confines of this legislation. Certainly there is no-one to arbitrate if they do. Under this bill the parties are restricted in what they can bargain about. It is quite extraordinary that the opposition, which would stand for unrestricted freedom of commerce in ideas and agreements, want to see that restriction made even tighter.

The Greens would want to see this legislation include, across the board, the right to take industrial action as a fundamental and internationally recognised right. Australian history demonstrates powerful examples of workers exercising that right to progress important human rights issues—for example, against apartheid in faraway South Africa or, to bring it right home, the green bans which have protected so much of the wellbeing of societies from Sydney to Hobart and Perth. I remember well the ‘ships of shame’ action by the maritime unions here in Australia to try and help people who were being robbed of their wages, housed in filthy, unsanitary conditions and who in some cases were being starved aboard ships coming into ports. They are now unable to take industrial action because it would breach both Work Choices and, effectively, this legislation.

You have to ask: would the unions, who have flagged action against Pacific Brands to ensure that taxpayer funded machinery is not shipped offshore, be dealt with and charged under this legislation if they were to take such action? If other unions in a similar situation were to take such action I think they would be found to be acting against the law because this legislation does not fundamentally recognise the right to strike. I do not think you will hear too many other people even use that term in this place, but it is a basic and fundamental right written into international labour laws, and it should be recognised as a right in a wider set of circumstances than the very constricted set that this Labor government is allowing for workers in this country.

There should be better rights for workers to request and negotiate their individual flexibility arrangements. The Greens want to see further protections for those arrangements so that they cannot be used to exploit workers as Australian Workplace Agreements were used under the Howard laws. For example, we want to ensure that the bill guarantees protections for carers and for people with sick children or people with children with special needs so that they can negotiate work arrangements that meet their specific needs, secure in the knowledge that this will not put their jobs at risk. Is that too much to ask? Why is that not in this legislation? Why should a mother or a father who is contributing to this country but who has a special needs child not be able to insist that they get 20 minutes to drop that child in a caring place of a morning if the employer decides they are not going to allow for that? Where is the reasonable dispute mechanism—the circuit breaker—for people in those circumstances? Surely this Labor government in this great country of ours should be ensuring that people who have such needs have those needs reasonably met and that there is a reasonable umpire to arbitrate in circumstances such as that.

There should be transparency of the individual flexibility arrangements—these agreements that are to be made under this legislation. Employers are required to lodge such arrangements with Fair Work Australia—that is, the overseeing commission—where they will be made publicly available if the Greens have their amendment adopted. This would increase transparency and accountability without infringing on the privacy of the individuals involved, but at least there would be some check to ensure that there had not been exploitation of workers under these agreements. At the moment there is no check in this legislation and there should be.

I spoke earlier about the disparity between the rich and the poor. We are in a country where still, in the last 12 months, some CEOs took $14 million or $16 million home in their pay packets from their corporations. That is money that inevitably comes from average Australians through their purchase of goods and services. And yet, despite repeated statements by our Prime Minister and several other ministers about the obscenity of some of these payments, zero action has been taken—no action whatever! President Obama in the United States has put a half a million dollar cap on the takeaway pay of CEOs in companies which are being supported by the taxpayers through the bailouts that are now being required of governments for corporations which are in trouble because of the current economic downturn. But there is no such move from our Prime Minister, who is, notwithstanding, a Labor Prime Minister.

We will be moving an amendment to this legislation which allows Fair Work Australia, the arbitrator, to look at CEO packages when corporations move to sack hundreds of workers and to see that those packages are not excessive. This is just a fair go. Why should there be CEOs on millions of dollars per annum who are determining, over a period of months or even weeks, that they are going to sack hundreds of their fellow Australians and put them on zero income—with all the hardship that is entailed in that—despite all the commitments of the CEOs, without there being any overview of that behaviour?

We have corporations who want government action to bail them out of their current financial troubles and we have seen legislation in this place to put billions of dollars of taxpayers’ money at the disposal of these same corporations. Why has this government not acted to say the quid pro quo here is that the excessive greed, self-investment and plunder of the public wealth stops? I have moved a number of motions in this place to clip the wings of these corporate robber barons of this decade, and on every occasion the government and the opposition have got together and voted those down. It is totally unfair, it is irresponsible and I would have thought there would be better behaviour and a much stronger defence of the interests of workers, and indeed the purchasers of goods and services, from a Labor Prime Minister and a Labor cabinet in Australia in these particular fiscal circumstances.

Senator Hanson-Young has been strongly advocating the need for paid parental leave, and yet I heard Sharan Burrow from the ACTU leading the retreat on just that matter last week. This is quite extraordinary. We are one of only two countries in the OECD that do not have paid parental leave. The Greens are advocating 26 weeks when a baby arrives to allow the parents to spend the good time, the essential time, the bonding time with that child which is so necessary for that child to be able to maximise their fulfilment, their opportunity and their own wellbeing down the line. But no—we now hear that it is going to be too expensive in these economically dire times. Let me put the figure to you. The Greens amendment—and it will come in the form of a second reading amendment, an appeal to the government, because it has to under constitutional arrangements—would cost less than $1 billion a year, and that is to bring in full parental leave. We are talking about 26 weeks parental leave for less than $1 billion a year.

The tax cuts for the wealthy in this country, for those earning incomes over $75,000, which come into play now under this budget, supported by both sides, are costing taxpayers $3.5 billion a year. So what we have is the big parties in this place saying, ‘We grant the already wealthy $3½ billion, effectively, of taxable income, at the same time as we can’t find $1 billion to meet this critical need for parental leave in this great country of a fair go.’ I cannot understand that. But, yet again, when we moved to block those excessive tax cuts, the Greens found themselves on one side of the parliament with the big parties on the other. I appeal to the opposition to look at this move by the Greens for parental leave and to support it, because otherwise we are going to find the government sliding right back from it. At a time when they can find $42 billion for a stimulus package, they are unable to find $1 billion for parental leave just for Australia to catch up with the rest of the world.

We have approached the government to look at funding community employment law services. There are thousands of people in the workplace who are dealt with unfairly each year, and under this legislation the only road for action to redress that unfairness is through the courts. This is not enhancing legislation to look after a fair go in the workplace. It falls way short. My Western Australian colleagues tell me 4,000 people approached legal services in Western Australia alone last year to seek redress for grievances. We believe they are in an unfair situation, as are many employers, but where people do not have the wherewithal, be they employees or employers, they should at least have access to fair legal advice and employment law advice. We will be moving to have the government provide an assurance of funding for those critical legal services.

Finally, there is the matter of the International Labour Organisation. Australia is not only a signatory but a founding and driving force for international labour laws. You all know that. Australia has a long and proud history of ensuring the rights of workers right around the world, including the classic right to strike when there is an injustice being done. We believe this legislation ought to be submitted by the government, and if not the government the ACTU, to the International Labour Organisation for advice as to whether it complies with our international obligations. It is a very simple test. There is no movement by the government or, so far as I know, from the ACTU. There are unions who want to see that test complied with and we will be proposing that it is. (Time expired)

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brown, you did foreshadow an amendment. Did you intend to move that now?

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No. We will move that further on in the proceedings.

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I am extremely pleased to support the Fair Work Bill 2008. This is a historic debate. This legislation is the culmination of political, union and community opposition to the Howard government’s Work Choices legislation. I am very pleased that I was part of the union campaign against the legislation. I stood at rallies with workers who said, ‘We cannot accept this legislation.’ I stood at rallies with workers who had walked off the job despite threats from their employer to take legal action under the Work Choices legislation against those workers. Those workers stood up for their rights and they stood up against what they believed was a very bad law. The Australian community said clearly and unequivocally that workers are entitled to respect, to dignity and to rights at work. The Australian Council of Trade Unions and the Australian Labor Party campaign resonated with the community. There is no argument that it was not a major factor in the defeat of the coalition government at the last election. When in opposition, this government campaigned to develop industrial legislation that struck the right balance between an employee’s and an employer’s needs. Significant consultation took place with affected parties and that has resulted in legislation which does balance flexibility with fairness.

Work Choices was the embodiment of the coalition’s political miscalculations. It is interesting to note that in the coalition’s minority committee report on this legislation they claim that the government’s legislation ‘is the latest iteration in a succession of evolutionary changes to the Australian workplace environment’. Well, there was nothing evolutionary about Work Choices. Work Choices was a radical, revolutionary approach to ripping away the conditions of workers in this country. Work Choices was revolutionary and it was radical, and it was designed to disempower ordinary Australians workers in workplaces around the country. It really was about adopting the lowest common denominator and going down the low road on workers’ wages and conditions. It relied on improving productivity and competitiveness by reducing workers’ wages, conditions and rights. This was a flawed approach, an approach rejected by the Australian public. Work Choices was the epitome of the coalition’s hubris and mean-spirited approach to working people. It was radical and flawed, and it was not the proper way to try and get economic progress in this country.

I have often asked myself why this came about. Why did we move from a situation where it was generally agreed that workers should have rights in the workplace? There is no doubt in my mind that it came about because of a neoliberal approach to industrial relations. The neoliberal approach was to take any protection by government out of the community. Workers should be left on their own to negotiate with their employer, with no union rights, with no safety net rights and with no legislative rights to protect them and give them a fair go in the workplace. Workers were left to deal one on one with their employer.

Before, Work Choices individual contracts were available but no-one moved to them. No-one moved to individual contracts, because it was the general view that they were an unfair form of contract for an individual worker with limited access to the capability of negotiating, with a well-resourced employer, a fair and equitable contract. Under Work Choices workers were then left with no access to external support and advice in the face of well-resourced employers. Why should the employer maintain the complete prerogative to determine when a worker works, how a worker works, what access the worker should have to a union and what rights the worker should have on the job? It does not happen in any other advanced country in the world. But Work Choices headed down that path to give all the rights to the employer and to deny the employee any rights to collective bargaining or rights to reasonable conditions on the job.

This approach is a neoliberal approach. It is an approach that was popularised by the HR Nicholls Society, whose members believe that workers should come to work fearful: they should fear coming to work and they should fear the proposition that they would lose their job. That was the HR Nicholls Society’s approach. We all know that senior coalition government ministers went to the HR Nicholls Society and made regular speeches to the society, doffed their cap to this organisation and behaved, in my view, in a sickening and sycophantic manner, promising even more radical industrial legislation. Work Choices was not enough for the HR Nicholls Society, and the coalition were prepared to give them more. Make no bones about it: if Peter Costello comes back as the Leader of the Opposition—

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Senator Ronaldson interjecting—

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

He’s the campaign manager!

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

If his campaign manager over there gets his way and Peter Costello comes back, workers in Australia should be well aware that Peter Costello was one of the first to tread the path to the HR Nicholls Society, that he was one of the first to say that you improve productivity by taking workers’ rights away and that he will be there again as a spear carrier for Work Choices in this country.

Since I have been in this place, three areas of coalition arrogance, hubris and incompetence have stood out for me. The first is their complete miscalculation on Work Choices and their view that Work Choices should come back. The second is the global economic crisis and their attempt to blame every problem in the Australian economy on a Labor government facing a global economic meltdown. The third area is their disbelief that we really do have a major problem with the environment and global warming. These three areas all come together to demonstrate how out of touch the coalition is with the real issues that are required to move this country forward. And what could be more stupid than, in a period of economic boom, to not give workers extra rights, to not give workers a fair go by introducing Work Choices? How could we ever trust a coalition government again? When Australia is enjoying, off the back of the mining boom, massive growth and wealth, what is the neoliberal approach of the coalition? Take away the rights of workers, deny them access to unions, deny them access to collective bargaining, deny them access to respect and dignity on the workshop floor. What would happen if Peter Costello ever became Prime Minister? The Peter Costello fan club want that Work Choices legislation back in place.

If during the boom periods workers are denied their share of prosperity and dignity within this country, then what are they really arguing for in a period when the mining boom has faltered and we are facing a global economic crisis? Some of the employers made no bones about it during the committee hearings. The employers were saying that we are in an economic downturn, that we are facing this great economic crisis, so you should not have values, you should not have principles and you should not have rights for workers. In a period of economic downturn, workers should have no access to decent rights at work. That was the argument we heard from some of the employers. The productivity arguments were not there in terms of where they were coming from. They were still trying to run the lie that was perpetrated by the coalition when in government—that is, if you give workers access to decent rights, if you give them access to unfair dismissal rights, then the economy will come to a grinding halt. Some of that was argued again by the employers, but there is not a serious academic of industrial relations or a serious economist in the country who can prove that point—not one. In fact, all of the analysis that was done proved clearly, in my view, that to provide workers with decent rights at work would improve productivity, would improve dignity on the job, would improve cooperation. Yet what did we get? We had the coalition adopting an approach that set the worker individually against a well-resourced employer.

In the boom times, take away your rights; in the bad times, even more rights have to be taken away. This is just not sustainable. Workers are entitled to have decent rights at work. Workers are entitled to have some understanding that they can go to work and not be treated unfairly, not be dismissed at the whim of the employer, to be only dismissed if there is a fair and reasonable reason to dismiss those workers. They are not entitled to have their dignity stripped away by legislation such as Work Choices. The lowest paid and the most vulnerable workers need rights, support and dignity. They do not need their rights taken away; they do not need Work Choices.

The government believe that we should never forget that if the coalition ever get their hands on the levers of power again then Work Choices is sitting there in the background ready to go. You only have to listen to them in their media interviews: they really want Work Choices. And they really want to suck up to those elements of business that want to individualise the arrangements. And they are still there. You only have to look at the transcript of the Minerals Council to the committee, when they said that they should have the right to determine what unions are on the job and that workers should have the right to negotiate individually. That is the sort of approach from big business that is still there, and the coalition are running down and doffing their cap to big business, doffing their cap to the HR Nicholls Society, ripping away the rights of workers. There is a major test for the coalition: if this is not right, then you will stand up and you will support this legislation that provides workers with a fair go.

That is what this bill does. This bill is the absolute opposite of the Work Choices legislation. This bill confirms the right of working people to collectively bargain with their employer, something that was not there under the coalition. It means that employers will be expected to bargain in good faith with their employees. This is not a revolutionary concept; it is a concept that has been alive in the United States, of all places, for 100 years. This bill confirms the right of working people to secure a comprehensive set of National Employment Standards in law. It is a real safety net—not a Mickey Mouse safety net that the Liberals would have you believe they put in place—that provides some dignity and security for working people. It confirms the right of working people to expect that, if they lose their job because of some petty and malicious reason, then they will have recourse to some support from government. That is appropriate. It confirms the rights of working people to expect that where there are disputes they will not be at the mercy of the law of the jungle.

I was involved in a dispute, before I came here, with a company called Morris McMahon. Workers were on $12 an hour. They wanted to negotiate a collective agreement. Morris McMahon said, ‘No collective agreement; we want individual contracts,’ and those individual contracts would not have given those workers any dignity on the job. They had to go on strike for 12 weeks to get a resolution to that dispute. There was no support for them from the then Howard government. There was no understanding of the issues that were important to them and their families. The government just washed their hands of them and said that they had to continue the dispute. This government wants a fairer, more equitable and more humane approach to industrial relations than that.

Business has argued during the committee hearings that if the economic circumstances change then you should change the legislation. I reject that proposition because you cannot have values, fairness and equity changing every time the economic circumstances change. The government’s legislation is designed to sustain workers in the good times and the bad times. It is about fairness for the employer and fairness for the workers.

Arguments are being put up that unions’ right of entry would be abused. Part of the argument we hear about why there is going to be a massive reduction in productivity is that unions are going to have right of entry. But unions have had right of entry in this country ever since I have been here and long before then, and that right was there to allow unions to ensure compliance so that workers got a fair go in the workplace. In this legislation there is the proposition that unions will have access to the workplace, but with those rights come responsibilities and severe sanctions against any union official who abuses those rights. So with the rights come responsibilities.

Some employers have argued that the bargaining rights go too far and that they should have the right to choose which union sits down and bargains on behalf of their employees. I have never heard so much nonsense as that in my life. The opposition have always argued—I think, with tongue in cheek—that it is about freedom of association; but their freedom of association is the freedom not to join a union. They have no counterbalance and argument for freedom to join a union. That was quite clear when big business came to that committee and argued the proposition that they should have the right to determine which union sits down at the bargaining table. Talk about employer prerogative! I have never heard the likes of that in my life, and that is not what happens in any other country in the world.

This government has a mandate, a clear and unequivocal mandate, for this legislation. We went to the Australian public based on a broad understanding of what should happen to provide fairness and dignity at work. The argument that you should dot every ‘i’ and cross every ‘t’ before you win government is a nonsense. You cannot expect the election manifesto to extend to legislative detail. There was no mandate for Work Choices. (Time expired)

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

It is interesting to come in here today to speak on the Fair Work Bill 2008 and for the first thing I hear to be Senator Cameron talking about neoliberals. The first question I want to ask is: on the day the Labor Party decided to deregulate the single wheat desk, what were they on that day—neoliberals or hypocrites?

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

That is the question. The fact seems to have escaped the Labor Party that it was they who came charging in to deregulate the single desk. It was the Labor Party that decided that the market had to reign supreme. It was the Labor Party that dragged small farmers kicking and screaming to the lowest common denominator, to be held hostage by those who have complete and utter market power over them. But this is a point that the Labor Party seem to have conveniently forgotten and Mr Rudd seems to have conveniently left out in his little totem in the Monthly.

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So you seem to change and morph as events require. But every time you talk about neoliberals or deregulation I will just say to you: what was your position on the day that you, the Labor Party, rushed in—and it was one of the first things you did—to deregulate the single desk? What was your position towards those farmers on that day? How do you balance the paradoxical positions you held on that issue?

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

You know you are vulnerable on that and you are complete and utter hypocrites to come in here and belt on about neoliberals when on that day you led the charge. You led the charge to put those farmers down. This is the position that you people have—

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

You can interject all you like, Senator Cameron. You can run with the fox and you can hunt with the hounds, but in the end people know exactly what you are: you are fraudulent.

This is the position that the Labor Party is now trying to espouse before the Australian people: oh, the hurt of it all! And all this rubbish about the HR Nicholls Society—it sounds like they must be in every workplace. I have never met them. I would not know them if they stood up in my cornflakes. Who on earth are the HR Nicholls Society?

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Who are they?

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Cameron interjecting—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Cameron, I have tolerated a little bit of interjection. If you would let Senator Joyce be heard in silence, thank you.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. I know why they interject; they are on extremely shaky ground. This whole dissertation about the HR Nicholls Society—the HR Nicholls Society being under the bed and sneaking around corridors—is a load of rubbish.

Let us get down to what this legislation is about. The Greens said right from the word go that they are going to vote for this. For the Greens to come in here and talk about what is wrong with the legislation is completely and utterly pointless because they have no bargaining position. The Greens are going to vote for the legislation. The Greens will not hold the line. When push comes to shove the Greens are going to do what they always do—fall into line with the Labor Party. It has been a bit peculiar lately because they have gone out and announced their support before they even got into the chamber. At least in the past we had to wait a little while.

The crossbenchers will also agree with the legislation. It is the case that the Greens said yes at the start and the crossbenchers will say yes at the end. They will all say yes and whatever legislation the Labor Party proposes will go through. That is the reality of it. We are going through the process here. We will be certainly holding the line on the issues, but the reality is that this Labor Party policy will go through with the support of the crossbenchers and the Greens. All their romantic dissertations about amendments are pointless because they would not have the ticker to hold the line if it came to voting against the bill. Because the Labor Party know that, they will show glib empathy, nod and smile, and whimsically look around. You know that at the end of the day they will say: ‘We’ve got them packed away. They’re going to support us, so don’t worry about it.’

There are a couple of things in here that I really do think are obnoxious in the year of our Lord 2009. The first one is the so-called right of entry of union officials to people’s private property. There is this crazy idea that, if the filing cabinet for my employees is in my living room, some union official can wander through my living room because he has apparently a superior right to a policeman. He does not need a subpoena to get access to these records; he can just make up his own mind. Surely we have left those days behind. Surely a person’s private property should be respected with dignity. You cannot have a union official come wandering into your place. How did he get that right? If he wants to be a policeman, let him be a policeman. Do not give a union official superior rights to officers of the Crown. They say: ‘We’ll hold them to account. We’ll be out there checking that they don’t look at what they’re not supposed to look at.’ How are you going to check what information they read and what information they collect? How are you going to monitor that? You are not.

I think this is completely obnoxious. The Australian people should know that the Labor Party are dovetailing into this legislation all these nasty little pieces and then running out with the word ‘mandate’—‘We’ve got a mandate to let someone wander through your living room or kitchen or come into your private dwelling; we’ve got a mandate for this person’s rights to be superior to other people’s; we’ve a mandate.’ We see once more the gun-to-the-head approach. They have dovetailed and embedded in this legislation lots of nasty little bits of work. It is the job of this chamber to knock out those nasty little bits of work. If we do not knock out those nasty little bits of work then we hand the union movement back what they really want, and that is access to a cash flow. This is all about making sure that cash keeps flowing to the Australian Labor Party.

The mysterious shop stewards are supposed to look after the workers. They are not really looking after the workers; they are looking after the Australian Labor Party and making sure that they have complete access to the $¾ billion in union fees that are paid throughout this nation each year. We know about this because in every election the Labor Party are cashed up to their eyeballs. They are cashed up to their eyeballs not because they have sold a product in the marketplace that people have wanted to buy but because they have demanded the marketplace buy something or else they will send in their buffoons to stand over the top of them. We are going back to this position. We are going back to a cash flow by demand as designed by the Labor Party. The Labor Party believe they have a mandate, but I do not think the Australian people believe the mandate went that far. The decision to repeal a piece of legislation is your right—and, as I said, it will go through—but you do not have carte blanche to associate any issue with this legislation.

The Labor Party believe that small business should be exempt from unfair dismissal laws. They say so. The National Party and the Liberal Party believe that small business should be exempt from unfair dismissal laws. Let us get that clear upfront. Let us not have a philosophical debate about whether you believe there are certain sections in the community that should be exempt from unfair dismissal laws. There obviously are. All agree that it should be small business. The argument has come to be—and I think this needs to be further fleshed out—what a small business is. The Labor Party’s position in this legislation is that a small business is one with a headcount of 15 workers. If you have 15 or fewer people at your work site, you are a small business. If you have more than 15, you are not a small business. The Australian Bureau of Statistics believes that it is 20 or fewer. So automatically within the government we have two different definitions of what a small business is. I am led to believe by a very reputable source—Kevin Andrews—that the ILO says a small business has 50 employees. So now we are starting to get a difference in the definition of what a small business is.

We have a problem with 15 because a person who has been put out of work will not get employed if he turns up to a workplace in the middle of a recession and is employee No. 16. That is what will happen. This will discriminate against people who are put out of work, unfortunately because of a recession, getting employed again. In the middle of a recession there is only one thing we have to try to do and that is to get people back into jobs. If we get people back into jobs, we are doing our job. That means we have to remove the impediments that keep people out of work. Naturally enough, small businesses, who are the biggest employers in this nation, will shy away from employing that 16th person if they take on board with the employment of that person a whole range of other liabilities that they did not have—that is, they are now covered by the requirements of the unfair dismissal laws.

So we have to seriously look at moving this number in a direction that deals with the fact that 15 will mean that every workplace in our nation that has fewer than 15 employees will be one that is unlikely to take on that extra employee. We have to find out what the potential employee cost of that is. People know we are in a recession. They know it is going to be tough. They understand that the rules of the game have changed somewhat. We have to make sure that, in bringing this bill before the Senate, we do not create impediments that are going to exacerbate the financial crisis that is inevitably turning up—and it is called a recession.

The Labor Party in their infinite wisdom have also brought forward other pieces of legislation which will definitely make the current recession worse. One of those is the emissions trading scheme. This is something that will definitely put people out of work. In the campaign in Queensland there has been overwhelming sentiment from people not wanting to lose their jobs over a gesture. The gesture is that you are going to change the environment. But you are not actually going to change the environment; all you are going to change is the cash flow into certain working families so they cannot make their house payments. Ultimately their house gets repossessed and someone comes along and changes the locks on the house. People, especially in the Australian Workers Union, do not like the idea of losing their job for a political gesture that has no real effect on climate.

The reason I bring the ETS up in the debate on this legislation is because the previous speaker, Senator Cameron, brought in the ETS. In refuting his point, he of all people should be leading the charge to make sure we knock the ETS out. If we do not knock the ETS out we are going to knock his workers out of a job. I find it peculiar in the extreme that it is the Labor Party that has been completely fraudulent in their representation today of their protection of workers’ rights. Yet in the same breath they are putting forward an emissions trading scheme—a tax on endeavour, enterprise, the mining industry, the agricultural industry, the aviation industry and the tourism industry—that will put workers out of work. We will take that to the election—every day we will remind your working families about your legislation that specifically took them out of work.

It will be interesting to see whether the AWU has the ticker to stand up to the Labor Party for their people. At this point in time they have not. They have morphed towards another inquiry, then run away from it. This is another case of the juxtaposition—the parody—of Labor positions. They rail against neoliberalism yet they deregulate the single desk and put small farmers at the behest of the big players in the marketplace, and the small farmers are getting done over. It was the Labor Party that did this, yet they step away from that parody, they step away from that paradoxical and deceitful position that they have. It is the Labor Party that says, ‘We are out protecting workers; we are looking after workers with this Fair Work Bill,’ and at the same time puts forward an emissions trading scheme to drive workers, especially in the mining towns of Mackay and Gladstone, out of work—specifically out of work by reason not of the global financial crisis, not because of global warming, but because of Labor Party policy. That is what will drive them out of their jobs.

This piece of legislation as it goes forward will have amendments galore. I can see them coming at 100 miles an hour. It is going to be interesting to see how the Labor Party work—whether they are going to be conciliatory with the crossbenches and with the Greens in how they deal with certain aspects such as the right of entry, whether they are going to be conciliatory in making sure that the level of ‘small business’ is moved to a more appropriate number so that we have exemptions for small business and not just for the smalls of small businesses; or whether they are just going to play the game and play off the Greens and crossbenches knowing that at the end of the day the Greens and the crossbenches are going to vote for them anyhow. Let us see what amendments the crossbenches and the Greens actually get. Let us see which ones they agree to. That will be an interesting test. I will be honest: I can see this legislation going through regardless of what the National Party and the Liberal Party say, so locking in a position is really irrelevant.

The National Party will definitely be fighting to make sure that there is a better reflection of what small business should be; the number 15 is too low. We have to move that number up. We definitely believe that and we will be fighting for that. The National Party definitely believe that the right of entry by union officials into my private property, across my carpet to open my filing cabinet to go rummaging through your private details so that they can fill in their database is wrong. I strongly believe that. I think it is completely odious that this position has been brought forward. Let us see if the Labor Party are really conciliatory in making sure that does not happen. I wager that they will not be. I wager that they are going to stick to that. They want to build up their database on the private details of Australian citizens. They want to rummage through and they want to make sure they can stand over those people who dare to not join a union. They will stand over those people who cannot warrant why someone should be taking $400, $500 or $600 a year out of their bank account, away from their family, for a service they never get. It is amazing. It is always one of the complaints we get: the shop stewards—the service you never get—only turn up when he or she want their money.

That is where the Labor Party are off to with this legislation. If you look to the subtext, it is about them realigning themselves with their cash flow. Their biggest fear under the previous government was not for the workers; it was for the cash flow, for the flow of money from compulsory union membership back to the Labor Party. It has been a very successful stream of money. I hope that the coalition take a stand on some of those issues to make sure that we reaffirm our position that there is nothing wrong with unions—unions do a very good and purposeful job in our society—but we should not be compelled to join one.

We should not be compelled to allow someone within a union access to our private details. There should not be the belief that you can be somehow moralised over and stood over to legislate the right for someone to obtain certain details which, if I knew a union official was going to get them, I would never give to my employer. I would never, ever give them to my employer. I have no problem with someone turning up with a subpoena if they are an officer of the court but not if they are a union official. Call me old-fashioned, but I think that is how most other Australians would see it as well. If unions want the information, they can send you a letter in the mail and you can send it back to them. But do not come demanding the right of entry and demanding access to records that are none of your business. This is one of the most odious parts of this legislation.

The definition of a small business should include those that have more than just 15 employees. That is just a head count. Surely you could make it 15 full-time equivalents. I think it should go beyond that. It should go to something that reflects where everything else is currently. The ABS definition is 20 and the International Labour Organisation definition is 50. I think that a small business properly relies on numbers somewhere in between those two. I know what the government will say: ‘This is what you had before.’ Times have changed. We are heading to a recession. The last thing we want to do is give people, via this legislation, the motivation not to employ Australians. Our job in this parliament is to keep people at work, in a job.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate my support for the second reading of the Fair Work Bill 2008, but I reserve my position in relation to the third reading stage. I believe that Australians want their workplace relations system to be both fair and functional. They want to know that they will not lose their job due to unreasonable grounds or unexpected whims. They want to know that the wage they earn has parity with others doing the same job. They want to know that if their work life and their family life are out of balance it is by their choice, not by their employer’s. They do not want our most vulnerable, especially our young people, to be exploited in the workforce. However, Australians also want a system that is functional. They want to know that business is not being frustrated by red tape or unnecessary industrial disputes. They want to know that their livelihoods are not being lost because of the actions of those who make a living out of workplace disputes. They want to know that if someone has the energy and initiative to start a new business they will get a return for their efforts. In a time of global economic turmoil, they do not want the economy hampered by ideology.

That was the situation that we faced with Work Choices. I believe the Howard government’s policy was driven by ideology and that it went too far. I believe that it unsettled the balance of fairness and functionality. I believe that it put Australians at risk in a time of economic uncertainty. I know that the majority of the Australian public agrees with this proposition. So I welcome the move by the Rudd government to address the imbalance caused by Work Choices. Further, I acknowledge the mandate that it was given by the Australian people at the last federal election to scrap Work Choices. Work Choices is dead and I will not be mourning its loss.

But permission to knock down an unsafe house is not permission to build an equally unsafe one just painted a different colour. This was my concern when the Fair Work Bill was first introduced in the House of Representatives. At its introduction the minister promised the creation of a new workplace relations system for Australians that embodied the Australian genius for fairness and enterprise. She explained that a key purpose of this bill is to provide a comprehensive safety net of minimum National Employment Standards. She said the bill builds on top of these standards a new system of modern awards which will cover issues such as minimum wages, flexibility arrangements, leave provisions, dispute resolution and representation.

The minister also detailed other aspects of the bill, including the introduction of Fair Work Australia, a body to replace a number of other workplace relations bodies, such as the Australian Industrial Relations Commission. She also announced the creation of a Fair Work Ombudsman to replace the employment ombudsman. Aligned with these changes are also expanded powers for the Federal Court and the Federal Magistrates Court. Further measures announced by the minister include conditions for enterprise bargaining, unfair dismissal, redundancy and the transmission of business.

At 575 pages and 800 clauses, it is an extensive and complex bill, but I think it is much more clearly written and much less complex than its predecessor. Yet, despite its relative clarity, what has typified much of the debate surrounding this bill since its introduction has been not so much the scrutiny of substance but rather the echoes of ideology. This at times heated IR debate has been fuelled by major political parties, unions and business groups. I have found it amazing to observe the different parties reading the same text in the bill and coming up with such diverse and divergent interpretations of that text. As was put to my office recently, it is as though most of the commentators on this bill are reading it through differently coloured glasses. For some this may be due to real fears for the future. For others this may be due to bad experiences in the past. But for still others it is just ideological blinkers at work.

When this bill was introduced in its original form in the House of Representatives, I too felt that there was more than a hint of old style ideology about it. I have been concerned that the bill could allow uninhibited access by union representatives to work sites and to non-union-member personal records. I have been concerned that potentially the bill could allow unions to extend their powers beyond those which we saw in the Hawke-Keating workplace relations system. I have also been concerned at the possibility for an expansion of forced arbitration, which would undermine the important emphasis on flexibility and negotiation between employers and employees. I have been concerned about the transmission of business provisions that seem to provide a disincentive to purchase a business because the new owner would be hamstrung by previous industrial instruments. Finally, I have been concerned about the impact on small business and jobs. If the costs associated with protecting workers’ employment conditions are such that the boss goes out of business, who is the winner then?

I am a strong believer in the Senate as a house of review and the important role of Senate committees in that review. The committee process concerning this bill has borne out my faith in that process. The Senate Standing Committee on Education, Employment and Workplace Relations explored a number of my concerns, as well as the concerns of many others, in thorough detail. It was made clear that union right of entry was not unlimited in the evidence that was heard. Rather, unions were taking on their previous role as investigators of industrial breaches and that strict conditions guided right of entry to consider documents relating to a breach. However, there remain issues of privacy, which I will refer to shortly. It was also made clear that the powers of the unions were not being expanded beyond those prior to Work Choices, although there is some debate about that. Rather, the place of unions as a participant in discussions was being reinstated now that they are no longer parties to an award. This is part of the new emphasis on negotiation between employer and employee.

The position of government senators in the committee report is that provisions in the bill would not open the gate for widespread pattern bargaining and forced arbitration. On the basis of the government senators’ report, the one area where it could be argued that there has been an expansion, namely the lower paid bargaining stream, has the protection from industrial action and can only be accessed once. Finally it was argued by the government that its wide consultation and work with advisory groups resulted in changes that had the endorsement of small-business bodies. It is fair to say that there has been a significant degree of consultation with respect to this bill. While I will still be taking up each of these points in the committee stage, I was reassured that the government was heading in a welcome direction with this bill.

The committee process also noted inconsistencies, highlighted drafting errors and pointed out potential practical problems and, in some cases, unintended consequences. As a result, a series of recommendations were made and I am pleased to say that the government has moved to respond to a number of the recommendations. That is what the Senate process is meant to be about. It is about scrutinising legislation and, where possible, improving legislation. In contrast, if the Senate is a rubber stamp, I think you get a lot of adverse consequences. In relation to the Howard government’s Work Choices legislation, if it had been the case of a Senate with the balance of power held by the crossbenches then we would have got a different outcome; it would have been much more moderate and much fairer. I think it is important at this time of economic challenge that we get the balance right.

Over the last 24 hours, I have been encouraged by the discussions I have had with the government in relation to this and they have acted on a number of issues. Late yesterday, I and the other crossbenchers met with Minister Gillard to discuss the findings of the committee inquiry and the passage of this bill. Concerns were raised and the minister listened. There will be further discussions. In response, the minister has provided a detailed series of amendments that take on board a number of the significant concerns put to her by crossbench senators and detailed by the Senate committee inquiry.

It is pleasing to see in relation to the issue of greenfield sites that the government has listened to the concerns of the Australian Industry Group, and that is a good thing. I have been expressing my concerns for some time about protecting the privacy of non union members in relation to right of entry. I note also that the Office of the Privacy Commissioner raised similar concerns in their submission to the Senate inquiry. In the minister’s letter I am pleased to see that she intends to address the concerns raised about privacy.

In discussions with the minister’s office my office raised the possibility of including information about privacy in the Fair Work Information Statement, which all new employees are expected to receive. I am pleased that the minister has adopted this idea and also indicated that additional information will be provided about workplace flexibility and enterprise bargaining. I believe this will be of great benefit to all employees but particularly to our young people when first entering the workforce. With this in mind, I put to the minister that it might also be useful to provide information about unfair dismissal, appropriate union representation, the role of the ombudsman and appeal rights in this document. These are things that will provide a degree of clarity and certainty, and that is a good thing.

In line with my interest in family-friendly flexibility and provisions, I am pleased to see that the minister is considering the capacity, when an enterprise agreement allows it, for an employer’s refusal of a request for flexible arrangements to be resolved by Fair Work Australia. I have also expressed concerns about union demarcation over greenfield agreements. I am pleased, as I have indicated previously, that the government has moved on that, and I think that is a significant improvement.

I have expressed concern over the possibility of new transfer of business provisions being a disincentive for prospective buyers. Again I am pleased to see the provision for prospective buyers to check with Fair Work Australia prior to entering into purchase negotiations as well as the requirement for Fair Work Australia to consider the efficiency of the new business in the transfer of industrial instruments. The government is to be commended on its willingness to take up these concerns, which I and others have been raising for some time.

However, I do have remaining concerns and questions about this bill and wish to highlight them simply. I have put these matters to the minister in person and now my invitation to the government is for them to respond to these concerns in good faith. If you like to use the terminology in the bill, ‘to have some good faith bargaining’—

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

What about forced arbitration?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

We do not have deadlocked conferences here, Senator Hurley, unlike the place you were at previously, the South Australian parliament. I think there has been a lot of good faith in terms of discussing issues with the government and I am looking forward to further discussions in relation to these concerns.

In relation to union right of entry to explore breaches, I am still concerned about privacy for non-union-member records. While I understand the need on occasions to compare union and non-union-member records to check things such as wage parity, I remain concerned about a third party having access to the records of the approximately 80 per cent of the workforce who are not union members. The minister made it clear to me that employers will still be able to contest an alleged breach and stop entry until FWA makes a ruling. While this is an important safeguard, I signal that I will be looking very closely at the government’s amendments in relation to privacy protection. Also, I am concerned with the need for 24-hours notice to be given to employers before entering workplaces to explore outworker breaches. This is something perhaps from the other side of the fence, if you like. This much notice can result in backyard sweatshop operators packing up their operations so that, when the investigators arrive, there is nothing to see and unfair work practices can continue in another location.

In relation to unfair dismissal provisions, I am concerned that the 15-person threshold for small businesses to qualify for the small business unfair dismissal regime is too low. I am worried that a corner shop, snack bar or cafe with two or three full-time employees and a large turnover of casuals could too easily be burdened with these provisions, which could be a disincentive to employing people. I understand the practical problems—though they are not insurmountable—with suggestions such as having 15 full-time equivalent employees where an employer would have to calculate their staffing equivalent on the day of dismissal, but I signal that I am open to considering better ways to handle this issue.

Also in relation to unfair dismissals, I have concerns about the number of days in which a person can make a claim. I note that it is proposed to change it to seven days from the current 21 days. I think that, as was mentioned in the committee report, there is a real risk that a change to seven days may encourage people to make a claim before they have had a chance to consider whether they ought to claim or not or to get appropriate advice. The committee suggested 14 days; I suggest that even 21 days is more than reasonable and that we should not change the status quo.

Further, I wish to raise what appears to be an inconsistency where employees of particular organisations can appear before Fair Work Australia without the need to seek permission, but legal practitioners and agents are required to seek permission. I think that is unfair. Despite what Shakespeare said about lawyers, I think that lawyers do have a very valuable role in giving people the right to representation. As a lawyer, I think it is important that that right be acknowledged and that people not be disadvantaged if they want to exercise their right to representation for whatever reason.

Finally, I would like to explore better protections for work-life and family-life balance. Although I know these things were not ALP policy commitments, the inclusion of flexible working arrangements for parents of school-age children and children with disabilities and the capacity for some recourse if employers refuse flexible parenting arrangements out of hand are also areas of interest to me. I note from the committee report and from the Hansard that coalition senators raised this as an issue. It is certainly a live issue that is of concern, I believe, to both sides of the house, particularly where working parents have children with disabilities.

I am quietly confident that these concerns can be further dealt with and further advanced towards resolution. I have been impressed with the way that the Deputy Prime Minister and her office have handled negotiations with my office over this bill. Our dealings have been open, frank, cordial and practical. I want to also acknowledge the coalition. Michael Keenan and his office similarly have been very helpful. My discussions with him on the coalition’s concerns and the legislation generally have been open, frank, cordial and practical.

My office has spent something like 10 hours in briefings with the minister and her staff painstakingly working through our concerns. They may well find me and my office a pain, but they have done so with good grace to enable me and my staff to understand the complexities and intricacies of this legislation. It is because of that level of detail that I am able to stand here and offer such a short list of matters for further consideration. My many other concerns and questions have been considered outside of this chamber and I have been reassured in many respects by the information provided. And, again, I express my gratitude to the coalition spokesperson, Michael Keenan, and his office for the work that they have done and their assistance in giving me a better understanding of this legislation and our areas of difference. I believe that all of these negotiations have been modelled on the spirit of the good-faith bargaining that is detailed in this bill and should be the norm, I think, in dealing with complex legislation.

In summary, I believe that ‘work choices’ need to be genuine choices for workers and ‘fair work’ needs to be fair to employers as well. I reiterate my ongoing interest in relation to privacy for employees, protection for small businesses and provisions for work-life balance. I will be looking forward to the committee stage to seek reassurance on these areas. Consequently, I indicate my support for the second reading of this bill, but I reserve my position in relation to the third reading.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Yesterday, the people of Victoria and Tasmania had a public holiday to celebrate Labour Day. For many people this meant a day off from work to spend time relaxing with their families and kids, but this day represents much more than that. It represents the victory by the labour movement over 150 years ago for an eight-hour working day. As the slogan went: ‘Eight hours for work, eight hours for recreation and eight hours for rest’. Unfortunately today an eight-hour working day is just a fantasy for many Australians. It is something we daydream about, especially during the ninth hour, the 10th hour and the 11th hour of a working day. A recent study showed that Australians work the longest hours in the developed world with an average of 1,855 hours spent at work each year. That is 200 hours more than employees in other developed countries. What is more, over two million Australians work more than 50 hours per week.

One of the main reasons given for this rise in working hours has been job insecurity. The Howard government’s Work Choices laws did nothing to help job security and undermined the basic working conditions of hardworking Australian families. Work Choices gave workers only one choice: work harder or work somewhere else. Family First were the first political party to expose the holes in the Work Choices legislation, because we understood the effect this law would have on ordinary Australian families. Family First voted against Work Choices. Family First also introduced legislation to give back to workers their public holidays, meal breaks, penalty rates and overtime and to protect the redundancy rights that the Howard government had taken away. We voted against Work Choices because it got the balance wrong and workers could be easily ripped off.

The Rudd government has now introduced the Fair Work Bill 2008. The Fair Work Bill is one of the most important pieces of legislation to come before this place because it affects every single working Australian. Family First is committed to ensuring that this time we get the balance right. What is the balance? Family First believes it must be a balance between protecting the rights of workers so that they do not get trampled and making sure that businesses, especially small businesses, can operate competitively and without constraints so the economy can continue to grow, particularly in these difficult economic times.

Family First is concerned that the new Fair Work Bill swings the pendulum too far in favour of big unions, that the balance we are seeking from this bill is missing. We are concerned that some of the demands placed on businesses are in certain cases too harsh and need to be reviewed. In particular, we are concerned about the effects that some of these changes will have on small businesses, most of which are family based. We cannot be blind to the current economic environment. We cannot ignore the difficulties many small businesses are facing at the moment in trying to make ends meet and to stay afloat. We need a set of industrial laws which do not make things even harder for small businesses than they already are. We need laws which are fair for all. Most importantly, we need to make sure that we do not throw the baby out with the bathwater.

The new IR laws which the Rudd government has put forward make things tougher for small businesses. They leave them vulnerable and exposed. We need to remember that small business owners, like all Australians, deserve protection from exploitation. Job security, business security and family security must be at the forefront of our deliberations and our decisions on this bill. The last thing we want is for small businesses to be wary of hiring new staff and for small businesses to become more vulnerable and exposed.

The Fair Work Bill needs to differentiate between the small business owners struggling every day just to keep their businesses afloat and large businesses who can ruthlessly sack thousands of workers when the going gets tough. Those are the same big businesses who treat their fat-cat executives with special privileges and give multimillion-dollar bonuses while sending their workers to the unemployment queue. That is why we believe small businesses should be exempt from the right-of-entry provisions. The right-of-entry provisions as they stand seek to turn unions into workplace policemen. Sharan Burrow, it seems, is the new IR top cop.

The Rudd government now wants unions to be transformed into a police force, responsible for going around to businesses, even small businesses, checking to see if there have been any breaches in the workplace. The police are a statutory body. They are responsible for all citizens and they are impartial. The unions, while important, are anything but impartial. The unions, while concerned for all workers, are responsible only to their members. Family First cannot support granting powers of entry to the unions which will turn them into a law enforcement agency to effectively become the IR police. If the government wants to set up a new police squad with powers of inspection, it should establish a statutory body so that it is done fairly and within defined borders. The Rudd government is proposing to allow unions to barge into the workplace and inspect employee records—even those records of workers who do not belong to the union. These powers are extraordinary. I would be surprised if the ordinary worker supported a plan that gives a union access to their private information—information which is about them, not about the union. We need controls on these powers.

Giving too much power to any one side is always a bad thing. It does not matter whether this power rests with big business or with unions, too much power results in one group having more at the expense of another. It moves away from what we are trying to achieve with this bill—that critical concern of balance and fairness. We do not believe unions should have the right to inspect non-members’ records. That is why we have privacy laws—to stop people looking at our confidential information where we do not consent. Unions must not sit above the law. If there is a genuine need for unions to access nonmembers’ records, this must be determined and done by a third party. Unions cannot be judge, jury and executioner.

Family First also believe we need to tighten the regulation in relation to the granting of entry permits. Permits should not be issued more than once for any single suspected breach. There has to be a clear end to the process. In addition, Family First will be pushing that unions should hold a reasonable belief that there has been a possible contravention of the act before they are entitled to enter the workplace. This belief must exist not only at the time they are granted the permit but right up until they are about to enter the workplace. Furthermore, should a union representative knowingly or recklessly proceed with entry after having sufficient information on hand disproving the allegation, businesses should have the right to take action. This will prevent permits being transformed into objects of abuse. Family First believes union representatives must give at least three days notice before seeking to enter the workplace. Family First understand that businesses have their own requirements and cannot be expected to drop everything at a whim. We believe three days is a reasonable compromise.

Family First also has concerns over the unfair dismissal provisions. Sadly, the government has the balance wrong with unfair dismissal. Family First believe unfair dismissal laws are important and are an essential part of the industrial relations framework, but we need to make sure that these laws do not stop small businesses hiring new workers and helping to grow the economy. The government has already acknowledged that small businesses need exemptions from unfair dismissal laws by having something in this legislation for businesses with up to 15 employees. This number is too low and leaves many small businesses unprotected. This number must be increased to 20 and calculated as 20 full-time equivalents. A small clothing shop which has only three workers in the store at any one time but has 20 casual workers on its books must not be classified as a large business.

Family First will also be seeking amendments to the provision regarding facilitated bargaining for the low paid. Small businesses must be exempt from this provision. It is ludicrous to push small businesses into a corner where they are forced into workplace agreements that they simply cannot afford. Exempting small businesses from this law is simply common sense. Moreover, we want the government to clarify who exactly is a low-paid employee. We need to understand the scope of this provision before we vote on it. The government has purposely left this term undefined.

Finally, Family First have concerns about the transfer of business definition outlined in the bill. We welcome the government’s acknowledgement that there are issues with this provision, and we understand that changes will be made in reviewing the provision. We look forward to seeing that. A more balanced set of workplace laws would be better for everyone. It would mean that businesses could continue to grow, and that would mean more jobs for Australians. We will continue to work with the Rudd government to get some changes made to the bill. We are hopeful the government will listen to our concerns and to those of all Australians. We are willing to work hard to make sure that we get it right, because this issue is too important to let political squabbling get in the way of the lives of ordinary Australians and small businesses. This bill must be about moving forwards, not backwards. Let us make sure that this time we get the balance right with workplace laws.

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

In 1907 the President of the Commonwealth Court of Conciliation and Arbitration, Sir Justice Higgins, set the first minimum weekly wage. The Harvester judgment ensured a worker received enough remuneration to provide decent food, shelter, water and ‘frugal comforts’ for his family. The Harvester judgment said that ‘every Australian was entitled to every single one of these standards, every day of their lives and that if we as a nation did not endorse this, we could not claim to be a civilised society’. Simply put: it was about a fair day’s pay for a fair day’s work.

This concept of fairness is integral to the history of industrial relations in Australia, just as the concept of a fair go is a fundamental value of our Australian cultural identity. On 27 March 2006, the previous government abandoned this basic tenet of Australian culture, with its imposition of Work Choices on the Australian people. The stripping away of a new employee’s right to collectively bargain, the removal of unfair dismissal provisions and the removal of the no disadvantage test—only to be reintroduced as a last-minute, bungled ‘fairness test’—decimated the rights and remuneration opportunities of Australian workers and their families. Work Choices, contrary to the coalition’s $121 million advertising campaign, did nothing to simplify our workplace relations system. With more than 1,400 pages of legislation and regulation, it created a complex, legal minefield for employers and employees alike. As a Federation Press paper noted in December 2006:

… the principal thrust of the Work Choices reforms has been to individualise employment relations and, as a corollary, to marginalise both trade unions and industrial tribunals.

In this sole regard, the legislation fulfilled its ideological purpose to individualise employment relations, remove rights at work and marginalise trade unions, albeit to the detriment of hundreds of thousands of Australian families and small businesses, because many felt overwhelmed by the complexity and uncertainty of the process.

In November 2007, the Australian Labor Party took our alternative policy for a new era of workplace relations, Forward with Fairness, to the Australian people. The rest, as they say, is history. Our mandate for the Fair Work Bill 2008 is, frankly, overwhelming. With the introduction of the Fair Work Bill, the government is introducing a simpler, contemporary system, with laws that balance the needs of employees, their unions and their employers. This bill marks a return of the fair go for all Australians in the industrial relations sphere. The bill itself is shorter, simpler and less ambiguous than the Work Choices legislation, at approximately half the size of the existing Workplace Relations Act. It is easier to read and apply and, rather than reinventing the wheel, makes practical use of over 100 years of jurisprudence by maintaining understood concepts. For example, when examining the allowable content of an enterprise agreement, the concept of ‘matters pertaining to the employment relationship’ is maintained, as it is well tested and brings with it established legal principles.

The bill establishes a new one-stop shop for industrial relations in the Fair Work Australia organisation. Independent of unions, businesses and government, Fair Work Australia will be a contemporary and accessible agency, with a focus on providing fast, effective assistance to employers and employees. The Australian Industrial Relations Commission and the Australian Industrial Registry have served Australia well since their establishment in 1904 as the Commonwealth Court of Conciliation and Arbitration. Work Choices merely added to the bureaucracy by creating the Australian Fair Pay Commission, the Australian Fair Pay Commission Secretariat and the Workplace Authority. Combining the roles of all predecessors, Fair Work Australia will vary awards, make minimum wage orders through annual reviews, approve agreements, determine unfair dismissal claims, make orders on good faith bargaining and industrial action and conciliate to resolve disputes at the workplace.

On 16 June 2008, the Rudd government released 10 National Employment Standards as a minimum safety net for all Australian workers. In addition, the Australian Industrial Relations Commission is working on the creation of modern industry or occupation based awards. Modern awards will build on the National Employment Standards and may include an additional 10 minimum conditions of employment tailored to the industry or occupation. This will work to ensure that industries can maintain unique entitlements and flexibilities that have been negotiated over many years and will recognise that not all sectors have the same minimum award requirements. Under this bill all employees will have clear, comprehensible, comprehensive and enforceable minimum protections that cannot be stripped away.

The Australian government firmly believes in the principle of freedom of association—the right of every Australian to choose whether or not to belong to a union. The Fair Work Bill will streamline freedom of association and a number of other workplace rights into one part of the act. Under these general protections of workplace rights it will be unlawful for a person to take adverse action against a person because they have exercised a protected workplace right. Adverse actions include dismissal, discrimination, refusal to employ or the prejudicial altering of the position of a person.

Workplace rights remain an entitlement under an award agreement or industrial law. The Fair Work Bill provides clear, tough rules on industrial action. Employees may only take protected industrial action to support or advance claims during enterprise bargaining negotiations. Actions must be authorised by a mandatory secret ballot and bargaining representatives will be required to provide the employer with three working days notice of their intention to engage in protected industrial action. Fair Work Australia can order the termination of the action in circumstances of serious economic harm or the endangerment of the safety, health or welfare of the community. This section of the bill largely maintains the existing provisions for protected industrial action.

The right of entry provisions of this bill, which have been much discussed today, balance the right of the employees to be represented by their unions with the rights of employers to get on with running their businesses. In its Forward with Fairness policy the government committed to maintain the existing right of entry rules, and it has done so. Unions have a longstanding role in helping to ensure compliance with industrial law, and unions will be able to access and copy employment records relevant to a suspected breach of law being investigated. This was the position that existed prior to Work Choices and for many years prior to that. Strong protections are in place against misuse of information obtained by a union, with fines of up to $33,000 for a union which is proved to have misused information obtained. So the claims about setting up a new police force are wildly out of line with the actual provisions of this bill.

Enterprise bargaining reforms were introduced by the Keating government in 1993. A key component of the success of enterprise bargaining was the requirement for parties to bargain in good faith. Good faith bargaining relates to the process and conduct of enterprise bargaining negotiations rather than to the content. It requires all parties to communicate openly and to focus their negotiations on key issues, with an aim to forming an agreement. There was no requirement under Work Choices for parties to bargain in good faith. Even where a majority of workers wished to negotiate a collective agreement the employer could refuse to bargain and did.

I would like to remind colleagues of a very public dispute that occurred in my home state when a group of 16 electrical technicians were locked out of their workplace for one month because they wanted an enterprise agreement. Under the Work Choices legislation the company sought and succeeded in terminating its existing enterprise agreement once it had expired. Three of the company’s longest serving technicians, who had sacrificed wage increases for better redundancy provisions in their previous agreement, were now entitled to minimum redundancy provisions. As a result of being made redundant following the termination of the agreement, one of these technicians lost $86,000 in redundancy pay. He had 30 years of service with the company. The remaining technicians were then offered AWAs with a wage increase of one per cent per annum and an additional 2.5 per cent linked to what appeared to be impossible productivity targets. When they refused and undertook four hours of protected industrial action they were locked out of the workplace for one month. Under Work Choices the employer maintained the right to unilaterally deny the majority of technicians the right to choose an enterprise agreement and collectively bargain.

The Fair Work Bill provides for Fair Work Australia to determine whether there is majority support for negotiating an enterprise agreement and if so will require an employer to bargain collectively with the relevant employees. Collective bargaining is viewed as a fundamental human right under international law by the United Nations and the International Labour Organisation. Conventions 87 and 98 were ratified by the Australian government in 1973 and were then rendered meaningless by the Howard government’s introduction of Australian workplace agreements. The Fair Work Bill seeks to restore these internationally recognised rights for all Australians.

The other part of enterprise agreements and bargaining relates to employees in low-paid sectors. They often lack the skills and bargaining power to negotiate agreements. Similarly, individual employers in low paid sectors often lack the time or resources to negotiate the agreement. It is onerous for small business people to negotiate such agreements. Under the proposed legislation Fair Work Australia will be able to facilitate multiple-employer bargaining for low-paid employees to assist workers in areas like child care, aged care, community services, security and cleaning. Individual employers will be able to seek exemption from the process if they feel they should be excluded, and decisions by Fair Work Australia will be subject to appeal. I think it is worth emphasising that the impact of Work Choices was felt most acutely by the most vulnerable workers in the Australian labour market, including women, young workers and the low paid. In the first two years of Work Choices, 62 per cent of minimum wage workers suffered a decrease in their real wages.

I would like to remind the chamber of the case of 17-year-old Billy Schultze, a console operator, who along with more than 60 other workers and as part of a BHP takeover of service stations was required to reapply for his position and sign an AWA that cut his pay by $2 per hour as a condition of his employment. New definitions in the bill for ‘transfer of business’ result in broader protection for employees’ terms, conditions and entitlements in the event of a takeover, offering better protection for workers like Billy.

Work Choices—and this again has been much discussed this afternoon—removed all unfair dismissal rights for employees in businesses with up to 100 workers and, for other employees, the employer had only to demonstrate operational reasons to remove any challenge or right of redress. This resulted in clear hardship and real job insecurity for Australian workers, and their families, who could then be dismissed at any time for any reason. In its report on the impact of Work Choices on South Australian workplaces, the Industrial Relations Court of South Australia observed:

… there is a pervasive sense of job insecurity as a result of Work Choices, particularly in lesser skilled and lower wage areas of employment. A substantial cause of this insecurity is the exclusion of many employees from any access to an unfair dismissal remedy.

This bill restores the right to due process in the event of harsh, unjust or unreasonable dismissal for the more than four million Australians excluded under Work Choices. However, protections for small business have been put in place and they will be assisted by the Fair Dismissal Code, which, if followed by the small business owner, will ensure that dismissal is not unfair. The clear, easy steps and guidelines will allow clear and easy administration for small businesses. A lot of the fear about unfair dismissal clauses amongst small businesses relates to the administration of quite complex legislation and uncertainty about how to proceed rather than to unfair dismissal itself.

To summarise, early in 2007 the Prime Minister committed to consign Work Choices to the ‘dustbin of history’. We are here today to honour that commitment. The Fair Work Bill strikes the right balance for contemporary Australian society and returns the pendulum of industrial relations back to the centre, where it belongs. As we face an unprecedented global economic recession, an industrial relations system that provides certainty of legislative framework for Australian business and security of pay and conditions for Australian workers is an absolute must. It is worth noting that annual productivity growth averaged only 1.2 per cent while Work Choices was in operation compared to the annual average of 2.3 per cent over the previous two decades. This adds to the weight of international evidence linking collective agreement making to improved productivity.

In 2007 Harvard economics chairman Richard Freeman criticised the Work Choices legislation as unfair, destructive of productivity gains and unlikely to reduce unemployment. As reported in the Age on 12 September, Freeman believed:

… reducing the rights of workers would force down wage rates, increasing the dependence on welfare benefits, which would then also be cut. Then you get a genuinely divided society …

Freeman argued that creating jobs in a modern economy was not done by lowering wages of vulnerable people. He said:

… you need to improve the quality of skills, ability of firms, and workers who are key assets, to work together to make better products.

This bill finally consigns the philosophy of Work Choices to the dustbin of history by acknowledging that the way forward is not to rob Australian workers and their families of their pay, rights and conditions. It marks the beginning of a new Australian workplace relations system for employers and employees, providing certainty and stability during these difficult economic times as well as a strong foundation for flexibility and productivity for a prosperous future. The Australian people gave this government an overwhelming mandate at the last election to rip up the Work Choices legislation and replace it with legislation that restores the balance to Australia’s industrial relations landscape. This legislation honours our election commitments and restores in our workplace relations system the values inherent in the Harvester judgment. It sees the return of a fair go for all Australians at work. I strongly support this bill.

Helen Kroger (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Bill 2008. In the past few weeks we have witnessed the uncertainty and concerns of many workers who face very real and challenging times. With Australia experiencing pressure from the global economic cooling, many enterprises have been forced to lay off staff. The case of Pacific Brands is but one example. They have sacked 1,850 people, many of them in my own state of Victoria, and regrettably they will not be the last company to do so. For instance, Australia’s largest property developer, Lend Lease, has also announced that it will have to axe 2,000 jobs—20 per cent of them in Australia—whilst ironically businesses such as employment agencies will directly benefit from a surge in demand for job placements.

The Rudd Labor government has demonstrated that it does not have a grip on steering a steady course through these uncertain times. It has no idea how to create new jobs or even how to secure existing jobs. In the December stimulus package Mr Rudd promised to create 75,000 new jobs. Today, there is neither any sign nor any talk of those jobs. With the rising unemployment figures the Rudd Labor government is clearly on the back foot defending its December stimulus package. All talk of new jobs has been quickly dispensed with and we certainly do not hear any defence of the $10.4 billion that was spent. Oh, how easy it is to spend money but how difficult it is to create wealth and stabilise employment. The first spending spree failed to prevent Australia posting its first quarter of negative economic growth in eight years. Our economy is contracting. As we now know the gross domestic product fell by 0.5 per cent in the December quarter, which is evidence that the stimulus package failed. The reality is that company profits are dropping, the economy is shrinking and there is the great fear that Australia will not be able to avoid the global economic erosion, as so many of us had hoped.

Today we are debating a proposal by the Rudd Labor government which, sadly, could make matters even worse. The coalition shares the widespread concern expressed by many employers about the impact of the reforms on business certainty and on jobs. We must be very careful, in our consideration of the Fair Work Bill 2008, to ensure that it does not threaten the livelihoods of many Australians by lengthening the unemployment queues. Some of the proposals are deeply troubling—flawed ideas such as simplified union entry rights, augmented unions’ access to staff records and new unfair dismissal rules. The economic outlook is bleak enough—a situation described by the Minister for Innovation, Industry, Science and Research, Senator Carr, when he said so confidently that ‘no-one’s job is safe’. Treasury forecasts have indicated that economy-wide jobs growth will be zero or negative for the next two years, and unemployment is expected to go up by 300,000 over 18 months. Some economists are convinced Australia’s unemployment level could even reach nine per cent within the next 12 to 18 months. That is two per cent higher than the Treasury estimate. Businesses are deeply worried about these forecasts and the direct impact that declining demand will have on their commodities. They are concerned about the likely effects of the industrial relations reforms—and, may I say, with good reason.

This is a concern that seems to only resonate with the coalition. Coalition senators are worried that the new provisions will give unions far too much power and, as a consequence, could cost much-needed jobs. This bill has been drafted with the union movement uppermost in the mind of the government, a union movement that only represents 15 per cent of the Australian workforce. It is not the Labor government that has fought tooth and nail for the rights of all Australian workers. Coalition governments have, not just for 15 per cent of workers but for all workers. The Rudd Labor government spends much time rewriting history but, as we all know, substance and outcomes are the product of action, not words and spin.

There is no doubt that those opposite are ideologically blind when it comes to this bill. We have not forgotten that it was the unions who funded a $65.5 million campaign before the last election, the most expensive political campaign by any individual group or party in Australia’s history. We have not forgotten that it is the unions who continue to buy their influence in this place and who mandated a levy on each and every union member, before the last federal election, to fight the 2007 election. It is the unions who fight and jostle each other to determine which faction will be represented in which seat. In my patron seat of Deakin, the unlucky constituents have to live without proper representation in the shape of their local member, a former electrical trades unionist. Mr Mike Symon has little in common with the small business owners that reside in Deakin, has little appreciation of the daily challenges that families, parents and carers face and does not understand what it takes to run a business or what the core values are. They just want government to get out of their way and give them a level playing field so that they can create profits and sustain and grow employment. Today we must rise above Labor’s ideological blindness and act in the best interests of all Australian people—and this means including employers. We must strike the right balance between employees’ and employers’ rights. We cannot risk further job losses in these uncertain times.

The Senate Standing Committee on Education, Employment and Workplace Relations held extensive hearings into the Fair Work Bill 2008. The committee considered 154 submissions and held seven days of public hearings throughout Australia. During these hearings, there was not one witness who stepped forward and said: ‘Leave the proposed bill as it is. We have no problems with it.’ In fact, the opposite was true. Unions, enterprises, industry, employer associations were all united in bringing forward suggestions as to how the bill could be improved.

What started with the election policy named Forward with Fairness is in many aspects very different to what we actually consider in this legislation today. Experts believe that the bill, in effect, attempts to turn the clock back. The Fair Work Bill goes back to well before Howard’s 1996 reforms and even to before Keating’s 1993 reforms in reshaping industrial relations. With this one bill, Labor eliminates major industrial relations reforms of the last 25 years with one flourish. It is hard to imagine how antiquated, decades-old IR laws are supposed to strengthen productivity and employment in these challenging times. Labor has dismissed the needs of employers once again. Just read the inquiry committee’s report and you will get the full picture, the full story. The list of employers’ concerns is long, including concerns about unions’ entry rights, demarcation disputes, access to employee records and greenfield agreements, to mention a few.

One particular concern is the controversial right of entry. The right of a union to enter a workplace where it has members has not been questioned and nor will it ever be. But the right of one or more unions to demand access to any workplace where they do not have members is of great concern. Democratic principles are something that we in the Liberal Party of Australia hold close to our hearts, and it is only right that the employees themselves should have the opportunity to determine if they wish to meet with union officials. Any legislation that takes away the right of employees to self-determine what is in their best interests should be considered with great scepticism. Deputy Prime Minister Julia Gillard professed to support this principle during the 2007 election campaign, assuring all that ‘right of entry will not be changed’. Forward with Fairness contained an express commitment to retain existing right of entry provisions. Now, with the bill lying in front of us, we know this reassurance was only a hollow promise and not worth the paper it was written on.

In reality, both the scope of union right of entry and rights on entry have been expanded in the current draft of the bill. Employers and industry associations have expressed their concerns about this proposal. One witnesses at the Senate hearing, Mr Warren Stooke, Principal of Stooke Consulting Group, in giving evidence said:

Succinctly, the bill proposes that the right of entry be changed to the extent that an official or permit holder of a union will have the right to enter a site, whether or not there is an award or an agreement or even a member with which that union has a relationship. To that extent, that official would have a right of entry under the proposed bill to go in on what I would call a fishing expedition. All I can say is that that would probably come to no good and would be very destabilising to the existing relationship. So unless a union specifically has a historical relationship and demonstrable membership within that employer’s premises, then it would be inappropriate for a union to be given right of access as a fait accompli.

Many more share Mr Stooke’s position, among them the Australian Chamber of Commerce and Industry, the Australian Hotels Association and companies like resources giant BHP Billiton. The new proposed rules could lead to demarcation disputes between competing unions—or, as they themselves call them, ‘union turf wars’. The NSW Business Chamber chief Kevin MacDonald expressed his concerns at the hearings. He stated that the provisions could bring back those bad old days and, as a consequence, seriously harm businesses while rarely bringing any direct benefits to employees either. And it is benefits to employees that we should be on about here.

Of equal if not greater concern is the right this bill gives unions to inspect the records of all workers, regardless of whether or not they are union members. What right has any person to look at the private employee records of another without the express permission of that individual? It is something that we just would not consider in any small business or organisation. Why should a union be allowed to have access to non-union members’ employment records when those individuals have not chosen to be a part of that very organisation? How can an employer assure an individual of confidentiality and privacy? That is a right that every employee has to ask of their employer. There is no spin that can support this potential breach of privacy and the coalition holds grave reservations about the implications of this. Undeniably, this clause is designed to provide unfettered union power at the workplace. Unions will be able to enter the workplace and demand to inspect employees’ records if they suspect a breach of the law.

During the inquiry, the Australian Mines and Metals Association explained how easy it was to justify such drastic action. Workplace Policy Director Christopher Platt said:

Our concern in relation to the Fair Work Bill is, firstly, that the protections in relation to union access to employee information have been removed. It is not just a question of unions being able to access non-member records. Unions will be able to access any record of any employee in the business, and all they have to do is put together an argument to say that that is valid in respect of an alleged breach of the act or an industrial instrument. There is no fetter on that access; there is no person in Fair Work Australia checking that the access is reasonable.

At the moment, unions can under certain conditions access records belonging to their members. Why does this need to be expanded? Coalition senators did not hear any evidence during the inquiry for why this proposition should be changed. The appropriate checks and balances are absent in this instance.

Another area of particular concern to small business operators is the suggestion of change to the unfair dismissal laws. Whilst noting the general intention to reintroduce unfair dismissal rights, I question many provisions in the bill. Employers view unfair dismissal laws as a roadblock to hiring new employees and to possible investment in the expansion of their businesses. With the bill proposing a change to the definition of a small business to a headcount of 15 people, many businesses will consider retracting their operations or will maintain the status quo. In the current unstable economic climate, there will be many businesses with genuine operational reasons that will need to consider ways in which they can improve their businesses in order to look after their staff. In the words of Ms Leah Brown, Senior Workplace Adviser at Australian Business Industrial and NSW Business Chamber, who was a witness at the hearing:

With respect to unfair dismissal, ABI has serious concerns that the Fair Work Bill’s unfair dismissal provisions will be of significant detriment to small business employment. Small and medium enterprises in particular will be averse to engaging employees in an environment where they consider the hurdles to be overcome in the event of a separation expose the business to excessive administrative costs and financial risks.

In closing, the Fair Work Bill 2008 is everything but what it purports to be in name. It needs to strengthen not weaken our industrial relations system, to ensure that all Australians have the best chance in life. This bill should be one that is fair to all not just to the 15 per cent of the working population that are union members.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise this evening to speak briefly to the Fair Work Bill 2008 before the Senate. The Australian Greens want Australia to be brought up to speed with the rest of the world and to introduce a government funded, 26-week paid parental leave scheme to make the work and family arrangements that suit workers best. In encouraging and lobbying the government to do so, we believe that in the current economic climate the government has an opportune time to make a difference to mums and dads in the workforce. While senators around the chamber today stand here debating newly proposed industrial relations frameworks, one glaring omission in the Fair Work Bill is the issue surrounding work-life balance, including both workplace flexibility and paid parental leave simply to support working families.

Support for working families is a platform that the Rudd government went to the 2007 election with and, while it is all very well for ‘working families’ to be used as a mantra day in, day out, few will be convinced it means anything unless the government commits to a paid parental leave scheme as a budget priority to prove that support for Australian families is at the top of the policy agenda. The fact that in 2009 Australia is still one of only two OECD countries without a national parental leave scheme is an indictment of both the government and the opposition. Now more than ever it is time to support working families, as we experience more challenging economic times. The needs of parents and their newborns should not be overlooked simply because of the global economic crisis. Rather, ensuring parents have money in their pockets will no doubt help to stimulate the economy. Let us face it—we all know babies are expensive.

Legislating for a paid parental leave scheme offers wide-ranging benefits to business and also provides long-term productivity benefits to the Australian economy. A paid parental leave scheme must be a workplace entitlement. It is not a welfare benefit. The Greens have long been calling for a government funded paid parental leave scheme to be introduced, and it is time for the government to play catch-up and ensure that this is not going to continue to be a glaring omission in the upcoming May budget. On behalf of the Greens, I will be moving a second reading amendment urging the government to bring forward amendments in this industrial relations legislation to provide for paid parental leave by this year’s budget. We know that legislating for 26 weeks paid parental leave would cost less than $1 billion per annum, yet we keep hearing, ‘It’s all about the cost.’ We have just seen a $42 billion stimulus package passed without a look-in for Australian mums and dads with newborn babies. When it comes to parental leave, the government simply are not on the right page.

Despite the Productivity Commission’s final report into parental leave, handed down to the government late last month, we are yet to hear any movement on whether the government plans to respond, release the report and introduce legislation in support of Australian mums and dads. On Saturday just gone, the YWCA released their survey results of the views of federal politicians on paid parental leave—just in time for International Women’s Day, which was celebrated across the world last Sunday. The fact that just 32 federal politicians responded to the survey suggests that there must be some embarrassment within the Labor and the coalition ranks about their positions on the delayed introduction of some sort of government funded paid parental leave scheme.

Despite having one of the highest rates of female education in the world, Australia fails when it comes to supporting families on the birth or adoption of a child. From Finland to the Slovak Republic and even to the United Kingdom and New Zealand, paid parental leave is provided for and is an essential part of workplace entitlements. There have been continuous calls for implementation of a government funded scheme here in Australia that is in line with the ILO convention of 18 weeks, yet working mums and dads have been left out in the cold. Australia remains only one of two OECD countries without a comprehensive paid parental leave scheme. Would it not be wonderful for Australia to do something before Barack Obama does? Would it not be shameful if Australia were left being the only country without a paid parental leave scheme? Come on, Mr Rudd—let’s see you beat Barack Obama at his own game.

I briefly touch on the issues surrounding pay equity for women in the workforce. The gender pay gap is essentially the result of undervaluing women’s work. The work of women has historically been considered to be of less value than the work in industries and occupations dominated by men. A robust award system, strong minimum wages and collective bargaining are all essential elements to combating the gender pay gap. In the late nineties and early 2000s, most of the states in Australia undertook comprehensive reviews into the gender pay gap. They all found that the award system was crucial for changing how women’s work was valued. Most states introduced pay equity principles that allowed their industrial relations commissions to review wages and awards to ensure they reflected the proper value of the work being performed, regardless of whether it was by men or women. A couple of successful cases were run in New South Wales and Queensland before the awful Work Choices legislation hit families, mothers and their kids hard and took away—particularly from women—this avenue of addressing pay equity.

While we are pleased to see the Fair Work Bill contains more improved equal remuneration provisions than Work Choices, we will be keeping a close eye on how they are used and will not hesitate to recommend changes if those provisions prove ineffectual. As I foreshadowed earlier, I will be moving a second reading amendment to this legislation to ensure that Australia moves on legislating for paid parental leave for working mums and dads. Australia should not be one of only two countries in the OECD without such support for working families. Paid parental leave must be seen as a workplace entitlement. It is appropriate that this amendment be done through this legislation. The Fair Work Bill needs to be fair for all workers, mothers, dads and their kids. I move:

At the end of the motion, add:

but the Senate calls on the Government to bring forward amendments to its industrial relations legislation to provide for paid parental leave in this year’s budget.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

The defeat of the Howard government in 2007 was an unequivocal statement that Australians rejected the ideological policy of Work Choices and its attack on the Australian fair go. I think it is time for Australia to once again have laws to protect rights at work, including the rights to fair treatment, to a safe workplace, to protection from unfair dismissal and to collectively bargain. The Forward with Fairness policy, which is being implemented in the Fair Work Bill 2008, has the support of the Australian people. We are implementing it with a very clear mandate. But, more than that, research by Essential Research for the ACTU demonstrated that eight in 10 Australians want this government’s new and fairer industrial relations laws. I would like to congratulate the government on the unprecedented level of consultation that it has put in place for this bill—consultation with big business, small business, unions and every other sector of the economy. At a time when we face the reality of growing job losses, there is a greater need than ever for these reforms.

The opposition while in government made some pretty incredible claims, arguing that Work Choices was driving jobs and growth in the economy. It is now painfully evident that what was driving jobs growth was not Work Choices but rather the resources boom. Not surprisingly, very few members of the opposition are singing from that song sheet now. Now they are arguing that the repeal of Work Choices is threatening jobs. Well, just as Work Choices did not create jobs—the resources boom did—fair work laws such as those contained in this bill are not threatening jobs; rather, the global economic crisis is threatening jobs. The Rudd government, on the other hand, have recognised that there are a variety of factors that affect jobs growth. We know that we are not immune from the global financial crisis and, unlike those opposite, we can safely say that as a government we are taking every step possible to support growth in the Australian economy and protect jobs.

Workers need to know that their entitlements are secure in these insecure economic times. Work Choices stripped away redundancy provisions, provisions which workers need in the context of this global financial crisis. The Rudd government, the Rudd Labor government, is committed to protecting Australians who are vulnerable—something the Liberals do not want to do. They have opposed the stimulus package designed to prevent the loss of thousands of jobs. They have opposed payments to pensioners in the stimulus package. The Rudd Labor government, as our commitment to managing the global financial crisis and our commitment to this Fair Work Bill show, are committed to protecting the interests of everyday Australians.

This country needs to take practical measures to protect the community. Sadly, the opposition has time and time again failed to protect vulnerable Australians. The Rudd government understand that it is our job to look after people. At its core, this bill is about values—basic protections for working people. What will happen if workers such as those from Pacific Brands are not protected by our industrial relations system? We do not want to see workers such as these abandoned without things like redundancy provisions.

The Australian people voted to reject Work Choices. They voted for fairness and for balance, and that is what the legislation before us delivers. It delivers on what Labor promised at the election: it abolishes new and phases out existing AWAs; it provides for minimum employment standards; it gives low-paid workers access to enterprise bargaining and the benefits that brings; it supports the most vulnerable workers, those that have been left behind, in sectors like cleaning, community work and security; it provides for unfair dismissal rights; it institutes balanced and fair right of entry provisions; it provides for the inspection of records in a manner that protects privacy while enabling unions to ensure proper payment of workers’ entitlements; and it defends collective bargaining, the right to take protected industrial action and the right to organise. In respect of collective bargaining, I think it is important to note that productivity based bargaining and flexibility are at the centre of this new system. In fact, there are studies that show collective agreement making can and does enhance productivity. That is because the bargaining process gives employers and employees an opportunity to look together at the way they work, how they do things, and find new ways of improving efficiency and productivity, including by making workplaces more flexible.

Those opposite should recognise the mandate Labor have to deliver on our fair work policies. It is time that those opposite gave up on their Work Choices ideology in practice, not just in their rhetoric. The Leader of the Opposition said Work Choices was dead. However, I note that the opposition is struggling to make up its mind. Peter Costello says, ‘Bring back Work Choices.’ It is time for the opposition to get its act together and give Australians what they asked for, what they voted for: a fair and balanced industrial relations system.

Do not frustrate this bill from becoming law. Be it on your electoral heads. Wear the consequences of that, if you want, but it is not what the Australian people want. Labor knows that what employers and employees want is an end to this uncertainty. They want to know what the workplace relations laws of this country will be as we move through these difficult times. It is time to give employers and employees certainty, stability, productivity and flexibility—all things provided for within this bill. Labor is delivering a system that develops productivity, flexibility and a truly national workplace relations system. It is a system in which employers are clear about their rights and obligations. It is a system where workers can have confidence that their pay and conditions are secure. It is a system where employees and employers, and those that represent them, can get on with the job of making agreements that protect the fair go and protect jobs in these difficult economic times. I commend the bill to the Senate.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to speak to the Labor government’s Fair Work Bill 2008 to highlight a range of concerns and criticisms that I have. I ask a number of questions about this bill. Why would this government be the only government in the Western world in a time of a global financial crisis to re-regulate the industrial relations system? Why would it be the only government in the Western world that I am aware of to make it harder and more costly to operate a small business? Regulation is increasing rather than decreasing and costs of doing business are increasing rather than decreasing. Why would it be the only government in the world to proceed along this track at this time? These are difficult times—we all know that—so why is it going down this path?

The key question is this: how many jobs will be created as a result of the enactment of this bill? How many jobs? I put it to the Senate and the Labor government that it will create not one job. In fact the bill as it is currently is designed to hurt small business and it is designed to increase unemployment. In a fascinating twist late last night and again today we have seen the Labor government, through Julia Gillard, confirm that they will be moving amendments to their own bill. They have had over 15 months to prepare this bill and yet they admit even today—when we are debating this bill—that the bill is flawed, that the bill has holes in it, that the bill needs improving. The government have admitted that even as late as today. We know the bill as it is currently designed will hurt small business, we know it is anti-jobs and we know that it is going to increase union power in its current form.

Labor says that the bill will not cost jobs, but I commend our leader, Malcolm Turnbull, for reminding all of us today that Labor said that the December giant cash splash of some nearly $10 billion just prior to Christmas would create 75,000 new jobs. It would create 75,000 new jobs! What happened? Nothing—not one new job. Mr Turnbull reminded the public of that today. There is no evidence that the Labor government have put into the public arena, into the Senate, into this parliament to say that this legislation will create new jobs. In fact, all the evidence is to the contrary. It seems to me that there could not be a worse time to introduce the legislation as it is currently designed. It will hurt small business and will be a disincentive to job creation.

We have a global economic downturn. I note that this point was made by the Australian Chamber of Commerce and Industry just a few hours ago. They are concerned about the inappropriate timing—not to mention the bill itself—of the introduction of such legislation. What government in the world today is re-regulating its employment laws? Please advise, Labor senators and members of the Labor government. It is a very strange move indeed. The bill will increase costs to small business, it will impose excessive red tape and in its current form it will most certainly increase trade union power. We know that for sure.

The government has made much of this mandate theory. I remind those on the other side and those in the public arena that 44 times in this parliament the Howard government tried remove the unfair dismissal laws. It tried 44 times. Indeed, it tried after the 1996 election and after the elections of 1998, 2001 and 2004. Again, again and again the Howard government got that mandate and yet it was abused poorly and profusely by the Labor opposition. What we do know in terms of mandate is that Work Choices is dead. That is accepted. There is no problem whatsoever; that is accepted. Let us move on and look at the legislation for what it is in terms of how many jobs it will create. What we know is that the government promised before the election and indeed after the election that the right of entry laws would remain exactly as they were. I will come to that a little bit later, with some quotes from Julia Gillard in that regard. They also promised that compulsory arbitration would not be introduced. Of course, that is exactly what is happening. It is a wolf in sheep’s clothing. That is what is happening.

I am going to address each of those concerns shortly, but first I want to highlight the importance of small business. In the context of Australia today, small business is the backbone of our economy. Small business is the lifeblood, particularly of our rural and regional communities. They need support, particularly at a time like this when there is an economic downturn. We have over two million businesses in Australia. Ninety-six per cent of those are small businesses. That is approximately 1.9 million small businesses, employing some 3.8 million people—3.8 million families are benefiting as a result of the efforts of small business all around this country. In Tasmania, my home state, based on the latest statistics, we have 37,641 businesses in total and 96 per cent of those are small businesses—that is, 36,126. Tasmania is a small-business state. Around 50 per cent of the private sector workforce is in small business. They are the lifeblood of the community, because we are very much spread out. Not all of our population is in our capital city, as it is for our mainland counterparts and major centres. There are not just Launceston, Devonport and Burnie but all of the country towns and regional communities, and small business helps them survive. They move that money around; it goes around and around to support the jobs of people and families in those communities.

What we do know is that last year in its first budget the Labor government took an axe to support for small business. They took a $1 billion axe, in fact—$1 billion of small-business assistance funds was axed from the budget last year. We know that $700 million was axed from the Commercial Ready program. We know that $10.5 million was axed from the Building Entrepreneurship program. And the Small Business Field Officer program was axed by the Rudd Labor government. At the first opportunity they axed support for small business. That is what they did. And of course that is continuing: we are seeing the slow death now of many of the Australian technical colleges.

We know why all this is happening, and we know why the Fair Work Bill is structured the way it is: because the government are beholden to the union movement. They are beholden to the Labor Party cash cow that is the union movement. I am advised that some $750 million in union dues each year goes to the unions from their members. We know where a good amount of that money then proceeds: to the coffers of the Labor Party. We know that he who pays the piper calls the tune. That is exactly what is happening with respect to this legislation, the Fair Work Bill.

We also know that union membership is on the decline, accounting for less than 15 per cent of the private sector workforce now and going down. So the government want to prop that up, they want to support that, and they have designed the bill in such a way as to boost union membership. The government are pro-union and indeed anti small business. That is a great tragedy when the rural and regional parts of Tasmania and of Australia need that support. Why would this government be the only government in the world to be re-regulating the industrial relations system at this time? They are bringing in a bill that will not create one new job for Australia and will make it harder and more costly to operate a small business.

I want to commend to the Senate the recently tabled minority report on the Fair Work Bill 2008, specifically the chairman, Gary Humphries, and coalition Senators Mary Jo Fisher and Michaelia Cash, who did a great job in putting forward their views in that report. They have outlined some of their concerns, and I concur with their views. I want to touch on at least some of those and add a few points. The first concern relates to union access to non-union members. This highlights the very intrusive approach of the Labor government with respect to privacy matters. Why should unions have access to information about non-union members, whether it be health records or private information? Whatever is on the file at the employer’s office, at the small business office, is open for abuse under this legislation as it is currently written before us. I am sure that, after appropriate scrutiny by this Senate, wise counsel will prevail and the right to privacy will be maintained. In fact, I was at the Melbourne hearing of the Senate committee and raised a number of questions highlighting the views of the Privacy Commissioner, who expressed his views and his concerns in a submission to the Senate committee of inquiry. I thank the Privacy Commissioner for doing that. There were some very sound comments. I think and I hope that the government will accept some of those views—and, indeed, the foreshadowed amendments from this side—to ensure that privacy is protected and that employees’ personal records, whether they be medical records or whatever, are properly protected. Of course unions can have access to those records—if the employee provides the consent. Surely, that is just a fundamental golden rule that should be protected, preserved and supported.

With respect to right of entry: yes, there is no reason why unions should not have access to non-union employees where there is consent—but, if they do not, that is different. There should be an unequivocal promise not to change the right-of-entry laws. The view that was put by Julia Gillard before the election, and indeed after the election, was that there would be no change to the right-of-entry laws. The quotes are noted in the Senate committee report, going back to April 2008, when the minister stated that ‘the current rules in relation to right of entry will remain’. Then she said at a press conference on 28 August 2007:

We will make sure that current right of entry provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

That is pretty clear cut. Then it goes on. She said:

We promised to retain the current right of entry framework and this promise too will be kept.

That was in a speech to Master Builders Australia on 28 May 2008. So what could be clearer than that? Why don’t the government come in and apologise and say, ‘Look, we’ve broken our promise, we’ve breached our word, we’ve breached our commitment to the Australian people and we want to change’? But they have simply brought on this legislation as it is currently written and they want to proceed to change the right-of-entry laws to allow unions access to not only important personal information but also any other information, particularly with respect to those right-of-entry matters. If those matters need to be decided, they should be decided democratically. Whether that is via a secret ballot or some other arrangement, I do not know; that is a matter for further discussion and deliberation. It probably should be for a certain period of time—whether six months, one year, two years or longer—once that agreement is made, so that they do not keep coming back and so that companies do not keep getting intrusive calls from union representatives saying, ‘We want another shot at this.’

Chris Platt from the AMMA made his views about this very well known, and they are set out on page 142 of the Senate committee inquiry report. He said:

Our concern in relation to the Fair Work Bill is, firstly, that the protections in relation to union access to employee information have been removed. It is not just a question of unions being able to access non-member records. Unions will be able to access any record of any employee in the business, and all they have to do is put together an argument to say that that is valid in respect of an alleged breach of the act or an industrial instrument. There is no fetter on that access …

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

That is just not true.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That is what he said as a witness before the Senate committee. In other evidence given to the committee, it was said:

We are strongly opposed to unions having the capacity to inspect nonmembers’ records under the bill and propose that nonmembers’ consent be required as a condition of inspection.

That does make it clear. Senator Collins says it is just not true; let us see what amendments come forward to deal with those concerns.

Another issue is compulsory arbitration. Again, it was promised that it would not be introduced in this bill, and yet it is. As Mr Turnbull outlined today, ‘We propose that the ability to arbitrate, if negotiations fail, only be available where the parties genuinely consent to arbitration.’ That seems fair and something that I would strongly support. In terms of Julia Gillard’s commitment, she has said:

Under Labor’s policy there is no automatic arbitration of collective agreements. Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

That was on 30 May 2007. She has also said:

Compulsory arbitration will not be a feature of good faith bargaining.

That was on 17 September 2008, so that is a recent quote. Goodness—why doesn’t she commit to that and why doesn’t Labor commit to that?

The issue of greenfield sites is a concern for all of us on this side and certainly for any business operation setting up. It is a disincentive to major project development and the generation of jobs. The bill currently requires the maker of a greenfield agreement to notify all unions who may have carriage of members at that site that they intend to make a new agreement. What red tape and regulation that is going to invoke. That will be a nightmare for small business and for major business projects about to get underway. That requirement to notify all unions should certainly be removed from the bill.

Finally, on the unfair dismissal issue, as I said earlier the Howard government had to try 44 times to remove the unfair dismissal laws that were introduced under Paul Keating before we succeeded. The Labor government’s proposals for an exemption for small business are inappropriately worded. We know that small business see unfair dismissal laws as a disincentive to employment and creating jobs, but the government has brought them back. The definition of ‘small business’ is also an issue. It has gone from 100 down to 15 employees, and under Labor’s proposal that is a headcount—whether they are part time, full time or casual—not full-time equivalents. That is clearly an issue that needs to be sorted out.

Small businesses are the backbone of our community. They are the job generators and they need protection, support and encouragement to grow and prosper. Whether they are restaurants or caterers, hoteliers, independent retail grocers or retailers themselves—and I commend Tasmanian Independent Retailers, under the leadership of Grant Hinchcliffe, for what they are doing in Tasmania to create jobs, the major multimillion dollar development out near the airport with Statewide Independent Wholesalers; congratulations—florists, petrol station owners, butchers or bakers, whoever they are, they know that this legislation is a disincentive to creating jobs.

The bill will need further scrutiny. The committee stage will see a lot of argument, a lot of argy-bargy. I hope that the government sees sense and asks itself how many jobs this bill will create. I think the government will find that it does not create one job. The government should ask itself why it is the only government in the world that wants to re-regulate the industrial relations system at a time like this, when we have an economic downturn and we need to create jobs and support small business. These are the questions that need to be answered, and I hope they are during further debate on this bill, including the committee stage. I thank the Senate.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

It is with a certain apprehension that I rise tonight to speak on the Fair Work Bill 2008, given how central a role industrial relations played in the 2007 election campaign and the demise of the Howard government. It is not surprising that many Australians and many workers have eagerly awaited this bill. Given the ALP’s critique of Work Choices and its promise to rip it up, not to mention the party’s history, the bill is surprising because it does not actually rip up Work Choices at all. It also does not restore Australia’s industrial relations system to its rightful place.

Our institutions are not being strengthened, the language is being softened where clarity and precision are needed, and important principles are being watered down. For instance, it is not enough for us to take International Labour Organisation standards ‘into account’. Australia must comply with these standards and we should comply with them proudly. Those international standards were forged over decades with Australian participation and, at times, with Australian leadership. If we want to be a creative middle power and if we want to recover our reputation at the United Nations, which fell into tatters after the Howard years, complying with international obligations is not something we should just ‘take into account’; it is something that we should do.

The Greens have provided very detailed arguments and 11 recommendations in a minority report on this bill. We state that the bill overall is an improvement on Work Choices. Standing here tonight is something of a bittersweet experience for me. I immediately give credit to Senator Rachel Siewert and her staff, who provided a meticulous critique at the time Work Choices was passed into law late in 2005. I was working for Senator Siewert at that time. Members and senators may remember that on the night it was passed the gallery was full, a huge storm was ripping into Canberra and the power failed in the chamber for a time. It was a fairly dramatic moment. It has stayed with me since then. It was a huge cause of the demise of the Howard government, and we should not forget that. The fact that we were able to state in our minority report that the bill is an improvement on Work Choices unfortunately does not say very much. Of course it is an improvement. It could barely have been any worse. The question is: is it enough of an improvement and can it be strengthened? I will briefly pick up on three issues of concern that are about the long-term consequences of the legislation that we are debating tonight.

Former Prime Minister Howard’s attack on workers, their representatives in the union movement and our industrial relations institutions was savage and it was ideological. Howard inappropriately used this parliament to demolish core workplace standards and to limit the award system. I say ‘inappropriately’ because parliament really should not necessarily be setting core labour standards. A properly resourced independent authority should be there to prevent these issues being subjected to the rise and fall of political parties. This Fair Work Bill seems to continue this very dangerous trend. I believe there are consequences when parliament sets core standards such as these. They can become politicised and they can fail to keep up with movement and thinking in the community. An example is that in 2004 the Industrial Relations Commission granted redundancy pay to employees of small businesses. This provision was removed by Work Choices and has not been restored under the Fair Work Bill.

A century before Work Choices was rammed through this place, in 1904, very soon after Federation, the parliament delegated responsibility to a specialised and expert independent authority—the Commonwealth Court of Conciliation and Arbitration. That was not subject to party political considerations or pressures of the day. Higgins called this the ‘new province for law and order’. Our deputy sheriff Howard thought he knew a bit more about law and order. He threw out the comprehensive awards that had a lot of detail built up over a long period of time about the nature of the industry and the occupation concerned, a lot of specific insights into exactly what various professions entailed and how careers were to be advanced through the classification structures. All of these details changed over time as industries were mechanised or computerised or materials and workplaces changed. The award system provided the flexibility to be updated as those changes took place.

Setting these labour standards in legislative stone takes away the flexibility and independence that our industrial relations system in Australia was justly famous for. Letting politicians determine the National Employment Standards and letting politicians limit the award system is not ripping up Work Choices and is not providing stability and certainty to the market. It is in fact subjecting these standards to the political cycle. That is what Work Choices did. Work Choices assaulted an appropriate separation between the political process and the industrial relations machinery in this country. The Fair Work Bill should restore the separation and remove the role of politicians in setting these National Employment Standards.

My second concern regards our system actually being effective and being able to settle disputes. In the Fair Work Bill we have last resort arbitration in the collective-bargaining provisions and also in the low-paid bargaining stream. So far so good. However, there remains no means of effectively resolving workplace disputes unrelated to bargaining. Disputes about the application of the National Employment Standards, awards or agreement provisions are unable to be finally determined by an independent arbitrator unless there is consent by both parties. What the pre Work Choices system provided was equalisation and access to justice through a grievance procedure where impartial decisions could be made. That was much more than mediation because it was capable of determining, it was effective and the system could settle the case. Dispute settlement should be in every agreement—that is, mediation and conciliation and, if necessary, determination by the commission or some other entity. The Constitution does not talk about the mediation of disputes and it does not talk about conciliation only; it talks about arbitration. As one of the witnesses said in the inquiry process, ‘Arbitration is in our view the epitome of the Australian value that we all aspire to, and that is a fair go.’

The final issue I want to raise is in relation to employment rights. Part of the deal negotiated to pass the 1996 Workplace Relations Act was funding for community employment legal services. Most of this money has been subsequently withdrawn. Some services have been able to continue for a short time with funds from state governments. For example, the Employment Law Centre in my home state of WA is currently at risk of losing its state government funding and closing its doors. There is very little point in having enhanced employment rights if you do not know about them and cannot enforce them. The community law centres play a vital role in making all forms of justice, including employment justice, possible and accessible for many, regardless of income. We urge the government to adequately fund community employment law centres, as this legislation goes through.

As Senator Siewert made abundantly clear in her speech during the second reading debate, there is still time for the government to recall what it was like in here on that night in 2005 and to use this chance to firmly reset the balance back in favour of working people.

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Listening to some of the contributions during this second reading debate on the Fair Work Bill 2008 tonight it is easy to lose a broader perspective or understanding of some of the history and background of Work Choices and what is proposed to replace it—this bill. Tonight we debate a bill that delivers one of Labor’s core promises from the last election—that is, to sweep away what remains of Work Choices and to replace it with a fair workplace relations system. This bill represents one of the most important reforms that this government will introduce. Many people have been waiting for this reform for a very long time.

To fully understand the importance of removing Work Choices we need to examine it in context. Work Choices represented the combination of a decade of efforts to introduce an ideologically inspired and extreme framework for regulating Australia’s workplaces. Between 1996 and 2003 I spoke in this place on over 30 bills introduced by the previous government relating to workplace relations. As the opposition spokesperson on workplace relations issues in the Senate over several years, I directly experienced the Howard government’s determination to introduce its ideological reforms. On some occasions we managed to defeat bills with very extreme measures in them. On other occasions we managed to incorporate amendments that took the edge off some of the more extreme elements. On some occasions bills passed with the support of minor parties. But then the Howard government managed to secure control of the Senate. It is in that context that Work Choices makes sense. The Howard government then had the capacity to introduce all of the provisions that had been rejected or amended over the previous seven years, and they did so. But they did so with no mandate at all. They did not go to the election with any industrial relations policy. They had no mandate for their workplace relations reforms or indeed Work Choices at all. Most laughable, I think, is the suggestion from opposition members and senators now that they really did not understand the impact of what they were doing. They knew very well what they were doing; they had been trying to do it for many, many years. And when they secured the balance of power in the upper house they went the whole hog.

But let me return for a moment to the government’s mandate, which I think is very clear. At the 2007 election, Australian voters faced a choice—a choice between a Liberal-National government that planned to get even more extreme on industrial relations and Labor’s plan to go forward with fairness. They emphatically rejected Work Choices, and I do not think anybody today doubts that. The legislation reflects the Rudd government’s pre-election commitment that was set out very clearly in Forward with Fairness. And I was somewhat bemused during the Senate inquiry to hear witnesses such as Heather Ridout from the Australian Industry Group suggest that we should use Work Choices as the basis for moving forward now that we are facing a global financial crisis. The Australian Industry Group, as I recall, was one of the very organisations that said Labor needed to set out very clearly prior to the election what its plans were. We took them seriously at the time and we did so, and we did not expect to see the Australian Industry Group then say, ‘Oh, but we didn’t really mean that; now we want you to work from Work Choices as the basis for future reform.’

We need to contrast the mandate that Labor now has with the situation under the Liberals with Work Choices, which was introduced without mandate and without genuine consultation. Not surprisingly, Work Choices was never accepted by Australian workers despite an unprecedented advertising barrage to convince them that they were going to be better off. Eventually the Howard government decided, ‘Oops, the electoral impact of them now being worse off means maybe we do have to backtrack a little bit.’ But, alas for the previous government, it was a tad too late.

In deciding the new industrial relations system, the Rudd government, in contrast, has undertaken a very thorough consultation process with all key stakeholders before finalising the bill. With this bill we are no longer in an environment in which radical employers feel emboldened to push the envelope. And let me remind the Senate what the scenario was like under the previous government. We will not see attack dogs and men with balaclavas; we will not have a federal government either actively or secretly encouraging employers to test the law at every opportunity; and we will not see people being forced onto individual contracts. We will see equal remuneration included as a consideration rather than the narrower concept of equal pay which was introduced with the agreement of the Australian Democrats in 1996. With the celebrations around International Women’s Day, that is one issue that I am keen to celebrate today. We will now reintroduce to our law a broader concept of equal remuneration for workers as opposed to the much narrower one which has seen a widening of the gap between the wages of men and women. We will see disputes being settled by an independent umpire. I am very glad to see the old regime being swept away. The bill will have a significant impact on many vulnerable workers as it gets the balance right in the workplace and achieves both fairness and flexibility.

I want to spend a little time tonight dealing with some of the concerns that have been raised by the opposition. I listened just now to Senator Barnett talking about the opposition senators’ minority report. But, again in the broader context, I want to take the Senate back to some comments made by Senator Gary Humphries. Senator Barnett was referring to the opposition’s minority report and comments made there. But look, for instance, to today’s article in the Age by Michelle Grattan where she takes us back to comments made by Senator Gary Humphries, as deputy chair of the Senate inquiry into the bill, to the ABC not long ago. He said the bill was:

… cleverly articulated before an election and now presented in much the same form.

‘Much the same form’. You would not believe that if you were listening to opposition senators in the second reading debate. But, as even Senator Humphries concedes, this bill has been presented in ‘much the same form’ as was clearly articulated before the election. He goes on to say:

I would be surprised if my colleagues felt as if there were an excuse or a basis to reject the main architecture of this bill.

Yet when you listen to the second reading debate you would think that opposition senators standing up here are maintaining a case to oppose the main architecture of this bill. But let us look at some of the aspects they have gone to—

John Williams (NSW, National Party) Share this | Link to this | Hansard source

You are the ones amending it.

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I am glad that my Western Australian opposition Senate colleague has mentioned that we are going to make further amendments because we did foreshadow that that was likely after consultation through a Senate inquiry. Indeed, we felt that consultation should be meaningful. And so when the Senate inquires into a new, significant, large piece of legislation and makes good recommendations, the government picks them up. I will take the senator to some of them.

Let me deal firstly with what I would call the opposition’s right of entry charade, because that is what it is—a charade. The opposition has claimed that the right of entry scheme in the bill goes further than the commitment made at the last election. Senator Barnett just now referred to the opposition’s minority report. Let me take the Senate to the government senators’ report on this, where we clearly set out what we put in the Forward with Fairness policy and we comment on that. We point to one of the details that opposition senators have been complaining about and make the following point:

The committee majority notes that they have ignored the details of the policy reproduced below—

and indeed we do so—

which makes clear there is a right to meet with the union in non-working hours …

In their desperation, the opposition have latched onto a broad heading in our policy of Forward with Fairness. Remember, this is a broad heading in a policy released well before the election, which sets out how we would maintain rules about right of entry. The existing right of entry rules needed to be refashioned, but essentially, yes, they have been maintained. The core opposition complaint is that we are not maintaining the nuances that the opposition put in during Work Choices to try and limit the historical capacity of unions to ensure compliance with our industrial relations laws. That is what they are really objecting to. I think Australian workers will understand that, without having the capacity to pursue breaches, the capacity of unions to ensure that the law is being complied with is quite limited.

The bill is consistent with the election commitments made by the government. Under Work Choices the right of entry by unions was connected with the union being a party to an award or a collective agreement. Under the bill the right of entry will be linked to the right of a union to represent the industrial interests of an employee. This change is necessary because of the different nature of awards under the Fair Work Bill. It does not represent an increase per se in the right of entry. In particular, because award modernisation brings many awards together under a single instrument, it makes more sense for the right of entry to be linked to industrial representation.

Let us be very clear about what we are talking about here. We are looking at a regime very similar to what applied historically for many, many years prior to Work Choices, where unions had a recognised responsibility to follow through in compliance with Australia’s industrial relations laws. I asked many employer organisations about this during the Senate inquiry. I asked whether the framework as it had applied prior to Work Choices had been problematic. Was there a history of issues? Were there problems that could be identified? Fundamentally, the answer was: ‘No, but it might happen.’ I am sorry, but we need to deal with the reality here and now. We are designing a new system, a fair system, and not one structured on the paranoia and fearmongering that was the basis of Work Choices. That is not to say that we have not listened at all in relation to the right-of-entry provisions. As the Deputy Prime Minister announced yesterday, we are picking up the recommendations of the Privacy Commissioner. We did listen during the Senate inquiry and other consultation. There are going to be further amendments to ensure that people’s privacy will be protected.

Let me move on to another area where members of the opposition have sought to make much hay in recent months. This relates to the potential for union demarcation disputes in greenfield agreements. The opposition has argued that the bill will hamper new greenfield agreements and hamper infrastructure work and other projects that we are in desperate need of as we confront the global financial crisis. Under Work Choices an employer could determine the terms and conditions for employees under a greenfield agreement without consulting a single employee or employee representative. Let us just understand where the lack of balance was. Let me repeat that: under Work Choices an employer could determine—by themselves, without challenge—the terms and conditions of employment under a greenfield agreement without consulting a single employee or employee representative. That will no longer be possible under the new regulatory system, and I am proud of that fact. The government, however, has listened to concerns raised in consultation and will amend the bill such that Fair Work Australia must be satisfied that the employee representatives or union representing the majority of workers should be notified and that that is in the public interest and that the agreement be approved. It will no longer be necessary, as was previously proposed, to notify all unions.

Let me expand on the point I made just a moment ago in relation to the global financial crisis. The opposition argues that the global financial crisis should be used as an excuse to delay these reforms, in particular because they will reduce job creation. The reverse is true. The global financial crisis gives us more reason than ever to put in place the right policy settings in our workplace relations. This is particularly true in the case of the government’s workplace reforms, which will enhance the effectiveness of the government’s overall response to the economic slowdown.

First, the provision of greater workplace security for workers will enhance the impact of the stimulus package. A key determinant of the effectiveness of fiscal stimulus is the multiplier effect: the higher the marginal propensity to consume, the higher the short-run multiplier, the greater the proportion of the stimulus that will flow directly into the economy rather than being saved. All other things being equal, people will be more likely to spend an increase in income if they feel more secure in their employment. In contrast, the proportion that they save will tend to be higher, the greater the risk of an unexpected bout of unemployment. One of the key planks of the government’s workplace reforms is to provide workers with protection against arbitrary and unfair dismissal. This protection will boost the impact of the Nation Building and Jobs Plan by increasing the marginal propensity of employees to consume.

Second is the issue of job creation, and here too there is another story. The total level of net job creation in an economy is a combination of how many jobs are destroyed versus how many jobs are created. This is a concept that opposition senators do not seem to understand and, again, they are fearmongering. A higher level of job protection will tend to discourage needless downsizing. This is particularly important in a time of economic slowdown. Studies have found that companies that downsize are outperformed in the long run by companies with less workforce fluctuation. This suggests that removing unnecessary turnover could enhance productivity levels. Workforce turnover results in significant transaction costs including severance payments and then, later on, search costs. In addition, higher staff turnover can have productivity costs associated with the loss of firm-specific knowledge and experience and low worker morale. More effective regulation of arbitrary and unfair dismissals could enhance productivity levels thereby reducing the impact of the downturn. But these arguments seem to be lost on the opposition.

Some argue that greater workplace security and unfair dismissal laws in particular will reduce the level of job creation since firms will be less likely to employ workers if they are harder to dismiss. This may be true in some instances—and I stress ‘some’—although, given that hiring is largely driven by fundamental business demands, the effect of dismissal laws on hiring is overstated by many. This is an argument that has occurred many times and, since my time is limited, I will move on to dealing with what I think is a more fundamental issue for the opposition at the moment.

The opposition seem to be becoming experts at being sceptics. For a long time they have been, as we know, climate change sceptics. Recently, in opposing the government’s fiscal stimulus package and saying that we should ‘wait and see’ they showed themselves as being global financial crisis sceptics. Now we can see that they are also workplace fairness sceptics. By that I mean, when we face the issue of how we deal with managing our workplace relations, we can choose the low road or we can choose the high road. Those of us who are optimists about our future and our capacity to perform and manage in a global economy and who believe in the capacity of our workforce, our ability to develop skill and our desire to see a future for Australia, where we have a skilled workforce and a high standard of living, would choose the high road. This opposition seem to think that we should take the low road, which demonstrates to me that they are workplace fairness sceptics. They want to take a low road. This is not good for Australia’s future.

Anyone listening to this debate should understand that, even though Work Choices stripped away redundancy entitlements, the opposition still cannot see the concerns of the Australian public. Even though they stripped away countless other entitlements that the electorate knew by the pain that caused, if not to themselves, then to their friends, family or those around them, the opposition still cannot see those concerns.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Collins, your time has expired.

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate the conclusion to my speech in Hansard.

Leave granted.

The speech read as follows—

Conclusion

Workplace reform is one of this government’s key objectives.

At the heart of this reform will be the design and implementation of a new workplace relations system that provides balance, simplicity and modernisation.

It is only through detailed consultation that we will achieve the best design of this system.

The Rudd Government’s proposed new workplace relations system is fair, flexible and productive.

I believe that workplace reform must satisfy three key criteria:

It should be fair.

It should be simple.

It should foster workplace productivity.

‘WorkChoices’ didn’t achieve any of these goals.

It failed the fairness test since it gave too much power to employers, creating an imbalance in the bargaining relationship.

It wasn’t simple, creating a more complex system than the one it replaced.

Finally, it also failed the productivity test. It made the fundamental error of returning us to a framework of conflict.

In modern, flexible, highly skilled workplaces, productivity growth is more likely to be achieved by the development of workplace specific skills, improving morale and encouraging initiative. Unnecessarily pitting workers and employers against each other is at odds with this.

The proposed new Fair Work Australia system is designed with these three goals in mind.

In the very broadest terms, the new Fair Work Australia industrial relations system will be a simple, balanced system that allows employers to get on with business and employees to get on with their jobs.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

This legislation should be about jobs, jobs, jobs. And it is not, not, not. This legislation should be about keeping the Deputy Prime Minister’s promise that the government’s workplace relations reforms will not jeopardise employment. This legislation should be about keeping the Deputy Prime Minister’s promise that any wage increases under the government’s workplace relations reforms will be tied to productivity increases. This legislation is about the government’s broken promises on protecting and creating employment and this legislation is about the government’s broken promises on ensuring that wage increases are linked to increases in productivity, which of course in itself threatens the jobs of the very people that the government would have the Fair Work Bill 2008 masquerade as benefiting.

There is one promise that the government does keep with this bill. The promise was one made largely under the radar, not one made to the Australian people but one made by the government to its union masters, and it is that promise, tragically, that the government is intent on keeping with this legislation. There is a proper role for unions in the workplace and there is a proper role for employer organisations. Workers need access to a collective voice. Workers need to be able to choose their collective voice just as employers need access to a collective voice and need to be able to choose with freedom their collective voice. However, both those sorts of organisations, unions and employer organisations, deserve and should have the opportunity in the workplace to demonstrate their wares and to do so in a way that attracts members to them simply because they are doing the job they should be doing, not because they are given a legislative leg-up.

This bill gives a legislative leg-up to unions in the workplace. It gives a legislative leg-up to membership of unions in the workplace, and it gives a legislative leg-up to membership of unions in the workplace at the cost of the jobs of the very people that they will masquerade as protecting. It is a legislative leg-up at the cost of the rights of the very people that the union movement would masquerade as protecting.

Senator Ludlam talked about a recalibration of legislation in respect of protecting workers. This is a recalibration in respect of ensuring a cement path to membership of the union movement. It is not about giving workers freedom to choose to belong to a union; it is about directing the worker traffic so that they have little choice other than to fall into the arms of the union movement. That is the promise that Labor delivers, unfortunately, with this bill, at the cost of Labor’s other promise that its workplace relations reforms would not threaten employment.

Clearly, if provisions in the bill relating to rights of entry, greenfield agreements, transmission of business and unfair dismissals are implemented in the workplace they will unfold in a job destructive manner. Business knows this and has said some things about it, particularly during the course of the Senate Standing Committee on Education, Employment and Workplace Relations inquiry, but business has not said enough about it because it has been muted. Business has been seduced, if you like, into silence by a very clever government which has invited business in under the pretence of consulting in advance on the terms of the legislation. But the price of access to that closed group was secrecy and having to sign an agreement that, ‘We shall not speak outside these four walls.’ In that process business has compromised what it might otherwise say about what this legislation really means for Australian workers and Australian workplaces.

And the government is at it again. On the last day of Senate estimates, 26 February, the Deputy Prime Minister wrote a letter, which was tabled during estimates, making it clear that there is a draft transitional bill. On that same day, the consultative Committee on Industrial Legislation, which involves unions and employer groups, amongst others, met to discuss the transitional bill. Until that time, the evidence provided to the Senate committee and the comments made by business groups outside the parliamentary process amounted to: ‘Where is the transitional stuff? Where is the stuff that will help our members work through this once and if the Fair Work Bill becomes law?’ We learnt during estimates that once again, yes, by being invited into the so-called ‘consultative tent’ business will be required to sign up to a confidentiality agreement—seduced into silence in spectacular fashion. Business knows that this legislation will cost jobs in ways that far outweigh what they have been able to put thus far to the Senate committee.

An illustration of the fact that the government itself knows that it cannot keep its promise that its reforms will not cost jobs lies in the award modernisation process, which was part and parcel of round 1 of the workplace relations reforms. The schedule to the first round of workplace relations changes put through by this parliament had instructions to the Australian Industrial Relations Commission that talked about the dual role of the award modernisation process not resulting in a disadvantage to employees and not increasing costs to employers. Not only have various Senate committees had evidence from experts that both goals are not obtainable, the government knows that both promises are unable to be kept. Business, the retail sector and the pharmacy sector are all talking about the numbers of jobs that they are concerned will be lost in their sectors as a result of the award modernisation process and what that means for their industries.

More than that, there is evidence by the Deputy Prime Minister’s own hand that she knows she cannot keep her promise on the protection and creation of jobs. In a letter that she wrote to the chair of the Senate Standing Committee Education, Employment and Workplace Relations on 26 February, tendered during those proceedings, the Deputy Prime Minister outlined some key elements of the transitional and consequential legislation to operate with the Fair Work Bill once enacted. She includes in the key elements of that legislation:

… provisions to ensure that an employee’s take home pay is not reduced as a result of the employee’s transition onto a modern award by allowing for Fair Work Australia to make orders to deal with any such matter;

The Deputy Prime Minister is referring therein to the award modernisation process. There is nothing in her letter that refers equally to ensuring that there is no increase in costs to the employer community through the award modernisation, yet she sees fit to highlight in the transitional bill the necessity to ensure that employees’ take-home pay is not reduced as a part of the award modernisation process. The point is that the government made dual promises through the award modernisation process to protect employees and to protect employers, and this transitional bill, as confirmed by the Deputy Prime Minister’s own hand, is proof of the fact that the Deputy Prime Minister knows those promises cannot be kept—in particular the promise in respect of employees’ take-home pay.

As to productivity, the Deputy Prime Minister about 12 months ago was the self-proclaimed minister for productivity. Unfortunately that is no more. Under questioning during Senate estimates, the Deputy Secretary of the Department of Employment, Education and Workplace Relations revealed that there were motherhood statements in the Fair Work Bill as to the necessity to ensure productivity increases—little more than lip service. Mr Kovacic explained that, hypothetically:

It is not only the principal object of the act that emphasises the productivity considerations; that part of the bill, in dealing with the bargaining framework, has an explicit reference to productivity considerations.

Under further questioning, Mr Kovacic said:

In essence, at the end of the day, it is a matter for the parties to reach agreement on an agreement.

So the best that the Fair Work Bill can do in terms of linking wage increases with productivity increases is an implied linking; there is no express linking. What had the government promised? On 24 January 2008, Sky News referred to the Deputy Prime Minister as stating:

… our industrial relations system is about productivity … wage increases have to be about productivity gains.

On 8 May 2008, the Deputy Prime Minister was interviewed by the World Today and she said:

We have designed a fair and balanced system which is all about bargaining … That is a system that doesn’t feed into inflation because pay increases are productivity-based …

Show us the section in your bill, Deputy Prime Minister. On 24 January 2008, Samantha Maiden reported the following in the Australian and attributed it to the Deputy Prime Minister:

What we are saying to everyone; to employers, to trade unions, to everyone involved, is that wage increases have to be about productivity gains.

Yes, Deputy Prime Minister, you are saying it and you are saying it, but you are not legislating it. Show us where it is. On 7 May 2008, the editorial in the Australian reported:

Labor has … said it is wedded to productivity trade-offs for higher wage increases.

On 26 November 2008, an article in the Australian Financial Review written by Steven Scott said:

However, Acting Prime Minister Julia Gillard tried yesterday to reassure business about the economic impact of the reforms, saying the changes would ensure wage increases were tied to productivity improvements.

Where, Deputy Prime Minister? Where? It fails to deliver on that promise. In failing to deliver on the promise to not jeopardise jobs, in failing to deliver on the promise to link any wage increases to increases in productivity, yet in spectacularly succeeding to deliver on the government’s promise to pay back the union movement for its diligent job in seeing the Labor Party elected to government, this bill does a significant disservice to working Australians and will contribute to ensuring that more Australians are not working than otherwise would have been.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I rise this evening to comment on the Fair Work Bill 2008 and to express the Greens’ support for getting rid of Work Choices. It was very clear at the 2007 election that the Australian community wanted an end to Work Choices because Work Choices reduced the wages and conditions of Australian employees and many more lost protections from being unfairly dismissed. The federal election was a very clear vote on Work Choices. I have to say that the people who were the face of Work Choices, former Prime Minister John Howard and former Treasurer, still the member for Higgins, Peter Costello, remain the faces of Work Choices. I have to say—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Costello is the face of the prosperity we have now forgotten!

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am delighted to hear Senator Brandis say that the member for Higgins, Mr Costello, was the face of the boom, because no government was more irresponsible in failing to establish an industry policy for this country that protected the jobs of workers in the long term. They celebrated hollowing out the manufacturing sector. Manufacturing left the country; jobs left the country. They distorted the tax system so that income tax was reduced for the rich and we became totally dependent on profit income from mining companies, from the quarry. We became absolutely—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Reduced for the rich and eliminated for the poor!

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis! Senator Milne, I ask that you direct your comments through the chair.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you for the reminder. I certainly will do so. I was pointing out that the distortion in the tax system which occurred under the member for Higgins, the former Treasurer, was such that he shifted the tax away from income and onto company profits dependent upon Australia remaining a quarry where we dig things up, cut them down and ship them overseas, and we hollow out the manufacturing sector; we do not invest in education and training, we do not invest in innovation, we do not invest in research and development. We made the country totally vulnerable to a collapse in the mining boom and that is what has occurred.

Look around the country and see which jobs are going. It is not because workers are not productive; it is because the former government failed to recognise the sectors that were uncompetitive into the future. Here was the former Treasurer, the member for Higgins, Mr Costello, giving $62 million to Ford to build six-cylinder cars in Australia when it was very clear that nobody wanted to buy them and that $62 million was not tied to energy efficient design. It was not tied to vehicle fuel efficiency standards. The result is that workers have been put out of work because those companies are no longer competitive. Whilst they were no longer competitive, their bosses were skirting off with massive exit payments that were grossly unfair. So not only did they take the profits but also they undermined the capacity of workers to have work in the long term. By setting low standards and failing to see the trends of the future, they condemned their workforce to unemployment as countries like China set high vehicle fuel efficiency standards, establishing themselves a competitive advantage in the global marketplace, and now they continue to make cars, whereas Ford is going out the back door.

The car industry is a classic case of our complete failure to have an industry policy for this country. If we had recognised that the trend was to move to addressing long-term security in employment by shifting to a low-carbon economy, we would now have factories in Australia that were producing photovoltaic panels, for example. We would have factories in Australia producing wind turbines. We would have factories producing all manner of things in Australia, and we would have a workforce that had been helped to make the transition. There would have been investment in research and development, commercialisation and training. There would have been rollouts on a mass scale, and we would have those jobs in Australia today. My biggest criticism of the Howard government was the vulnerability that they left the Australian economy in while celebrating rivers of gold and manna from heaven as they gave out tax cuts hand over fist. They failed to invest in infrastructure, health and education. They failed to invest in economically productive infrastructure.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Senator Brandis interjecting—

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, I have asked you to stop interjecting.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Where was the investment in the future anywhere in the country? The other thing that I am most critical about, especially in terms of Work Choices, is that it was totally based on the false premise that individual employees were able to bargain fairly with their employers. Of course, everybody knows that that was simply not the case. It never has been the case, and the experiment demonstrated that absolutely. AWAs were one of the most pernicious aspects of Work Choices and were used to undermine the safety net for workers. That is very clear, and it is a good thing that we are finally getting rid of AWAs.

The workers who were most affected by Work Choices and who were the most vulnerable because of the power that was given to employers in those circumstances were women workers in low-paid jobs and workers from non-English-speaking backgrounds. I hear the current members of the opposition talking about the employees in the textile industry who are now losing their jobs. These people were most adversely impacted by Work Choices, but at that time I did not hear any empathy from the opposition or even any pretence that they understood the circumstances in which those people were put. The Greens opposed Work Choices in the Senate. We campaigned vigorously against the laws at the time they were announced and put through this parliament. The policy that we took to the last election was explicit in calling for the complete abolition of Work Choices, and we are still campaigning for that.

We are disappointed that the government has not carried through on its promise to totally rip up Work Choices. Rather than the government ripping up Work Choices, its Fair Work Bill builds on some of its key elements, such as not providing a fair dispute resolution process and consolidating the shift made under Work Choices from the conciliation and arbitration power to the corporations power under our Constitution. Also, the bill maintains restrictions on matters that can be agreed to in enterprise agreements. Matters relating to the environment or climate change initiatives will not be allowed in agreements under the bill. I think that is most unfortunate because, as I will indicate in a minute, some of the best ideas actually come from the workplace, where people come up with innovative ways of addressing issues. To disallow these ideas I think suggests that we do not have the whole-of-government approach that we are being told we have on climate change. Another issue is that, while the government is keeping a type of individual agreement that has more protections than AWAs, it will continue to have the potential to exploit workers. Also, the current bill maintains severe restrictions on employees taking industrial action.

The Greens have been trying to negotiate some amendments to the legislation. I take this opportunity to congratulate my colleague Senator Rachel Siewert on her work on this bill and on the amendments that she has crafted to try to address the concerns of the Greens and those of many workers. We want this bill to provide the protections, rights and responsibilities of a fair, just and sustainable society. Our amendments include giving Fair Work Australia the power to resolve general workplace disputes. Without this amendment workers have no means of resolving disputes, except by going to court to enforce their rights. We also want to remove restrictions on the matters parties can agree to in enterprise agreements. We also require more transparency to individual flexibility arrangements so we will know whether they are being used properly or whether they are being abused. That is a matter that my colleagues are trying to negotiate with the government.

We need to get rid of Work Choices and replace it with a fair, just and sustainable law for the workplace. We need to build resilience in our community, and fair employment laws are an important part of doing that. We want to ensure a framework that provides for genuine flexible working hours, paid parental leave and workplace democracy. I want to talk about those for a few minutes. On genuine flexible working hours, now is the opportunity to explore what optimum conditions we can provide, because the certainties of the old order are over. We have a global financial crisis, a climate crisis and a peak oil crisis. All the old certainties are gone. When you ask people ‘What do you want more of?’ they say that they want more time. They are sick of working seven days a week and very long hours. They are tired of being forced into a situation where they very often have to put their children in care for longer hours than they would like to. Very often families would like to do things together at the weekends and they simply cannot because of their working arrangements. There are also issues in relation to people with children with disabilities, people looking after aged parents or other people in the community and so on. People say: ‘I would just really like more time. I would like greater flexibility.’ Now is the opportunity to offer that.

We need paid parental leave. That is very clear. It is one thing which would improve the productivity in the workplace. Right now, we need that productivity in the workplace, and we need it especially from those women who have had years of training and experience. We need those people to stay on in the workplace. They are not necessarily going to do that unless they can get paid parental leave. I think this is absolutely critical. If we want to keep people with the right skills in the workplace for the long term and not disrupt their career patterns then we have to be very focused on that.

I just want to mention workplace democracy for a minute or two, because if you think about an individual workplace you can extrapolate those principles to the country. If you go to people and ask, ‘What makes a happy and satisfied employee?’ they will tell you that it is not just about the wages they receive. They will talk about being appreciated and having the person who employs them appreciate the fact that they are there and appreciate the contribution they make. Employees also appreciate people thinking about their training needs and the opportunities they might have for career advancement whilst working in a particular company. They talk about democracy in the workplace. They talk about whether there is fairness and inclusion or whether the boss, who owns the company, gets all the perks while the workers generate the profits for the company but never share in the perks or the benefits of that work.

Employees talk about communication—the need for people to be honest with their employees, tell them what the situation is, take them into their confidence and actually discuss with them creative solutions to the problems that the company might be having or the opportunities that the company might have. Very often the people on the factory floor and the people in small businesses have been thinking about ways to improve the business for a long time and they have never actually been asked or had the opportunity to feed in their ideas without fear or favour and have those ideas tested.

Employees also talk about bosses who lead by example. If you want to have loyalty and satisfaction from your staff then you have to have the same values in your leadership role as you are expecting of the employees in the organisation. You do not want negativity in the workplace undermining people there. You have to remember that people in the workplace have lives outside work. Just because you own the company or you run the business you may want to work in it 24 hours a day seven days a week but the people who work with you have families. They have other responsibilities and community concerns and want to be engaged in the community.

If you extrapolate these ideas to the nation you find that that means instead of this nasty dog-eat-dog, really hostile workplace that was set up under the Work Choices regime you move to—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Which government created more jobs than any other government in Australian history?

The Acting Deputy President:

Senator Brandis, if you have not already made a contribution you will be able to make a contribution in the debate. Please stop interjecting.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am very pleased that a point has been made about the number of jobs and participation in the work force because that was something I had not recalled that I wanted to speak about, but now I will. The Howard government boasted about the number of people in employment but failed to talk about the casualisation that occurred in the work force under the Howard government and the fact that you were deemed to have a job if you only worked a few hours. So the statistics lie about the numbers of people who had jobs with which they were satisfied and in which they could earn a decent income. So you may brag all you like, those former members of the Howard government who are so proud of their role in Work Choices, but let me tell you that out there in the streets people are disgusted about the fact that they were included in the statistics as having a job when they only worked for a few hours. Let us have a look at actual participation in the work force and then you will find quite a different position than just a raw statistic on what constitutes a job.

As I was saying before, you can extrapolate the ideas that I have just talked about with respect to the workplace, where you see that you get the best productivity from the people you work with if you create an inclusive environment which is trusting, has honest communication with employees, and which offers appropriate investment in research, training and career opportunities. And if you offer appropriate flexibility in hours and parental leave you will have a work force that is satisfied, works harder and generates greater productivity. As a nation we will be able to survive the financial crisis, climate crisis and peak oil crisis much better with that work force than if we have a work force where people feel that there is a lack of trust, that they are not valued, and that they are not given equality of opportunity—where that whole inclusiveness is missing.

That is where I think we need to start using this opportunity of the financial crisis, where all the old certainties are gone, to ask: what is it in Australia that will give us what we need—a fair workplace, a just workplace, a workplace where sustainability is on the agenda, where people know that they are going to be respected, where their dignity is respected and they are encouraged to have a broader involvement in the future of the businesses in which they work and in the productivity of the nation?

There is a story that I remember, and that I often reflect on, about three people who worked in a quarry. They were all asked what they did for a job. The first one said that he just worked in a quarry cutting stones. The second one said that he prepared building materials, and the third one said, ‘I build cathedrals.’ We want workplaces in Australia where everybody in this nation feels as if they are building cathedrals—that they are contributing, no matter what they do, to the bigger picture.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Pretty good, coming from an atheist!

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It just demonstrates the mentality that we have in the chamber that you cannot follow this notional view. The issue here is about the fact that people should feel as if the contribution they are making is to a better nation—to a better society and to a fairer, more just, happier, satisfied community. What we need to do after a decade of this dog-eat-dog individualism—versus a collective community view—is to rebuild community in Australia. We know that it is there just under the surface. Every time there is a tragedy in Australia we see what happens when the community comes together. People give what they can in the national interest. People do what they can in the national interest. We have not seen that in the broader sense; people do it on an emergency basis.

We are now facing a global emergency with the coming together of these three crises. I want to see the end of Work Choices. I want to see a new view of workplace relations that sees every worker in Australia think about, believe in and want to contribute to a national vision going forward to a more socially just, inclusive, fair, thoughtful and creative Australia which is resilient and which has good quality jobs and workplaces. That is the kind of Australia we want to see, and we want to end forever the faces and the remnants of Work Choices in this society.

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It gives me great pleasure to rise in support of the Fair Work Bill 2008. It gives all of us on this side great pleasure to see this bill finally in this place. This bill is the product of many months of consultation, negotiation and drafting by the Deputy Prime Minister, her team and her department. I congratulate the Deputy Prime Minister on her enormous energy, commitment and hard work in bringing this bill together, winning the support of all the key stakeholders and securing its passage in the House of Representatives.

Along with the stimulus package bills which we passed in the last session and the Carbon Pollution Reduction Scheme bill, which is still to come, I believe this is the most important bill that we will debate in the Senate during this parliament. The Prime Minister and all members of the Labor Party who went to the last election pledged to tear up the Howard government’s unfair and extreme Work Choices legislation. It was the central plank of our platform. It was the key issue we put before the Australian people. In his policy speech, the Prime Minister, Kevin Rudd, devoted more time to workplace relations than to any other single issue.

The 2007 election campaign was, of course, the culmination of two years of campaigning against Work Choices by the Labor Party and the wider labour movement, of which we are proud to be a part. I pay tribute to the Your Rights at Work campaign run by the ACTU under the leadership of Sharan Burrow and Greg Combet, a campaign which did so much to mobilise public opposition to Work Choices. I pay tribute to Kim Beazley, who insisted that the right response to Work Choices was a firm promise to scrap it, to tear it up and to stake our future as a party on that pledge.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

What about Gough?

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Senator Parry, you should know better.

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I pay tribute to the Prime Minister, Kevin Rudd—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

He didn’t pay tribute to you during the reshuffle.

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

who took that pledge to the Australian people in 2007, campaigned on it and won a historic history—a historic victory that Senator Brandis still struggles with. It is time to give the Australian people what they voted for: a new industrial relations system, one based on fairness in the workplace, security for working families and flexibility for business.

The fact that the economic circumstances we now face are very different to those we faced in 2007 does not in any way lessen our responsibility to give the Australian working families the benefits contained in this bill. Our current economic circumstances in fact increase our commitment to that responsibility, because imagine the position of Australian workers and their families if they had had to face the current economic downturn with a federal government in office which believed in the Thatcherite doctrine of survival of the fittest. Imagine if they were dealing with a government who put every man, woman and child at the disposal of a philosophy that says: fend for yourself at the mercy of blind market forces. Imagine what the position of Australian workers and their families would be now if we still had a government that believed that all employees should be put on individual contracts and deprived of virtually all legal protection in terms of their wages and conditions—including, as the Prime Minister noted this afternoon, redundancy provisions—at a time when so many jobs are at risk through this downturn. Imagine the spectacle at Pacific Brands if that company had had the legislative opportunity to continue its strategy of implementing AWAs.

Now more than ever, Australian workers and their families need an industrial relations system which protects their rights. Now more than ever, Australian businesses need an industrial relations system which ensures flexibility and prevents industrial conflict. Now more than ever Australia needs an industrial relations system which encourages and in fact requires employers and employees to negotiate in good faith to reach binding agreements. Now more than ever Australia needs clear workplace rules which both sides accept as fair and balanced. Now more than ever Australia needs an independent workplace umpire to resolve disputes before they lead to costly and disruptive industrial action.

The bill before us does all of these things. It is true that not everyone in the union movement is happy with every provision of this bill. It is true that not everyone in the business community is happy with every provision of this bill. Such is the nature of striking a balanced piece of legislation. But both unions and business recognise that this bill is vastly superior, vastly preferable, to what went before it—the arbitrary, unfair, extreme, unbalanced and ultimately ideological document that was Work Choices, a set of laws that virtually guaranteed to set employee against employer, a set of laws designed to foment industrial disputation, harm productivity and undermine the living standards of Australian families.

When considering the fact that business itself often found Work Choices completely unworkable, I am reminded of the events at Spotlight, a company that did implement AWAs but finally abandoned them in sheer despair as they discovered that over and over again they were forced to comply with ever-changing, ever-moving regulations—a regulatory regime which ultimately led them to prefer a non-AWA solution. Even in their ideological extreme, they could not develop a workable system.

If ever a government had a mandate for a piece of legislation, the Rudd government has a mandate for the Fair Work Bill. Both sides agree that this was the central issue of the 2007 election. Mr Howard, Mr Costello, Mr Turnbull, Mr Hockey and Ms Bishop as well as every sitting member opposite fought tooth and nail in defence of Work Choices laws. Who can forget the months of scaremongering advertising denouncing union bosses and warning of the terrible disasters that would follow if Work Choices was scrapped?

Senator Abetz complained in his speech earlier this afternoon about the cost of the trade unions’ campaign opposing Work Choices, but context is everything. Senator Abetz failed to mention the huge cost of the coalition’s dishonest scare campaign in support of Work Choices. We on this side remember that it was an avalanche of government advertising and an avalanche of government communications—sheer propaganda which would do the Romanian and North Korean governments proud. They were avalanches of propaganda designed to change, to subvert and to distort the opinions of ordinary Australians.

Do I need to remind the Senate that the Howard government spent more than $120 million of taxpayers’ money promoting the Work Choices bills, bills for which they had no mandate? That was on top of the $420 million of taxpayers’ money they spent promoting the GST. That was all part of a total spend, estimated by Jason Koutsoukis of the Age on 2 September 2007, representing over $2 billion of taxpayers’ money promoting Howard government legislation. It was in that context that the union movement mobilised and it was in that context that the Your Rights at Work campaign occurred. It was in the context of there being a government that was prepared to put literally billions of dollars of taxpayers’ money at the service of their own ideological and political electioneering.

What was the result of all these moneys spent on promoting Work Choices in the lead-up to the 2007 election? Labor polled 52.7 per cent of the two-party preferred vote and thereby proved that old adage that nothing kills a bad product like good advertising. So clear was the mandate that Labor won on the issue of scrapping Work Choices that even those opposite are forced to understand it and recognise it. In November 2008, when the Deputy Prime Minister introduced this bill into the House of Representatives, Mr Turnbull said:

The Coalition accepts that the Rudd Government has a mandate for workplace relations change as proposed in their election policy last year.

The Coalition accepts Work Choices is dead. The Australian people have spoken.

…            …            …

The Coalition acknowledges that industry stakeholders support key elements of the Bill.

…            …            …

The Coalition will not oppose the Government’s Fair Work Bill 2008 in the House of Representatives—

and I interpose here that Mr Turnbull did give himself an escape hatch in this formula when he said—

but we reserve our right to propose amendments to improve the operation of the Bill following the Senate Committee process without seeking to frustrate the Government’s election commitment to implement its ‘Forward with Fairness’ election policy.

It was an escape hatch, but it was a very small one. Nevertheless, Mr Turnbull and those opposite are now trying to wriggle their way through it. At today’s coalition party meeting, it was decided that the coalition would after all introduce major amendments. This is typical of what we have come to understand as the Turnbull three-step. The Turnbull three-step is a formula we have now seen on many occasions. Step 1: Malcolm Turnbull and the Liberal Party announce that they are supporting a government initiative and proudly wrap themselves with the bipartisan flag. Step 1 generally lasts for about 24 hours. Then we come to step 2. Step 2: Malcolm Turnbull talks about doubt; there is great doubt. He tries to strike a Churchillian pose and tries to strike doubt into his bipartisan wonder of the day before. Finally, we come to step 3: opposition. The other side reverts to type, forgets the rhetoric of day 1 and finally opposes the Labor initiative. We have seen the Turnbull three-step on the stimulus package. We have seen the Turnbull three-step on emissions trading. We have seen it on payments to pensioners. Now we are watching the Turnbull three-step on industrial relations. It has now become an old trick and we can all see it.

And why is Mr Turnbull doing this desperate three-step? Because he is feeling the heat from the self-appointed messiah of the Liberal Party, Peter Costello—and, Senator Brandis, I see you veritably bloom with enthusiasm for the subject. Last week Mr Costello said that the coalition should oppose the government’s bill regardless of the clearly expressed will of the Australian people. Mr Costello said it ‘might have been OK in times of good growth’ but it will ‘affect jobs in a downturn’. He said:

It will make manufacturing in this country more difficult and I think the Government has now got to reconsider that. It has to reconsider its proposals in relation to industrial relations.

Of course Mr Costello said on three occasions on Q&A ‘this is my policy’. He does not have too much trouble with his policy being different from what you say is your policy. So alarmed is Mr Turnbull by the continued presence—that looming omnipresence—of Mr Costello on the back bench—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

He’s certainly not alarmed to have you on the back bench.

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Well, I am pleased that I have provoked you into comment. Senator Brandis, the last time you interposed you probably got another two minutes out of Senator Milne and I fear you might achieve the same with me. Mr Costello called for Mr Turnbull to renege on his commitment made in November, and Mr Turnbull has now complied. Only four months ago Mr Turnbull gave a clear commitment that the coalition would not oppose the substance of this bill—and yet here you are doing that. None of us on this side are surprised by this humiliating backdown. The Liberal Party room is full of what the Prime Minister today called the ‘Work Choices addicts’. They dominate the positions on the front bench in the Senate. Senator Minchin, Senator Abetz, Senator Coonan, Senator Ronaldson, Senator Brandis and Senator Johnson all nailed their colours to the Work Choices mast in 2006, and it is clear to all of us looking on that they are squirming as the legislation comes into this place. You all believed in Work Choices then and you all believe in it now. Your leader asked you to die in a ditch for this policy in 2007 and it would appear that you are now being asked to die in a ditch for this policy a second time. I say that because those opposite are ideological fantasists on the issue of industrial relations. Senator Fisher said only moments ago that business has been seduced into silence, that the government has cleverly invited business in and on that basis business remains mute. You imagine yourselves sitting at the top of an ideological vanguard representing the thousands of silent antiunionists when, of course, it all exists only in your imaginations.

Senators opposite need to recognise that the tide of opinion has turned against their radical, neoliberal views on deregulating the labour market, not just in Australia but around the world. In the United States, Barack Obama was a sponsor in the Senate of the Employee Free Choice Act, which would restore workers’ freedom to form unions and bargain for better wages, benefits and working conditions without employer harassment. He continues to support that bill today as President of the United States. President Obama said recently:

In this country, we believe that if the majority of workers in a company want a union, they should get a union.

Whether we look at the United States or the European Union, those opposite are alone and isolated, out on an ideological limb. Their only ally in denying the basic rights of employees is the Chinese Communist Party, and I hope they enjoy the company.

It will be very interesting to see what amendments those opposite intend putting before the Senate. Mr Turnbull is trying to wriggle out of his commitment by claiming that the bill now before us goes beyond the mandate that the government was given in 2007, that we are somehow pulling a swifty on the Australian people by bringing in a bill that gives more to the unions and less to business than we promised. He hopes this allegation will give him the pretext he needs for opposing the bill, or at least a pretext for proposing wrecking amendments—amendments that go to the substance of the bill and not merely to the operation of the bill.

It takes a fair amount of gall for those opposite to accuse us of bringing in major pieces of legislation without a mandate. What mandate did the Howard government have for the 2006 Work Choices legislation? None whatever. They made no mention at the 2004 election of their secret plan to strip away workers’ rights and force all Australian workers onto individual contracts. They deceived the Australian electorate, just as they did in 1996 when Mr Howard said he would never ever introduce a GST. In contrast we have an absolutely cast iron mandate for this bill. This bill does not go beyond that mandate. The Deputy Prime Minister has been adamant that the bill will reflect the policy we took to the election, no more and no less.

Let me be specific about some of the provisions of the bill. Firstly, the bill does not reintroduce pattern bargaining. It is curious that those opposite should claim that it does. I thought those opposite were in favour of pattern bargaining. Why did I think this? Because under Work Choices, hundreds if not thousands of workers in various industries were presented with identical AWAs and told to sign them if they wanted to keep their jobs. The pretence that these agreements represented a unique interplay between the employer and the individual and that each agreement was tailored to individual circumstances is a fantasy. The reality is that each of those AWAs was a carbon copy of the next. This was pattern bargaining and the real supporters of pattern bargaining sit opposite.

Secondly, this bill does not allow the charging of bargaining fees to nonunion members—despite the claims of those opposite. Once again, there is a curious line of questioning from those opposite. Bargaining fees operate on the principle of user pays. This is a principle that those opposite have been happy to apply to almost every other circumstance they have encountered, whether it be VSU legislation or other issues of government services. So as far as those opposite are concerned, whether user pays is a good thing or not depends on who is paying whom for what service.

Thirdly, the bill does not return to the past on the issue of union right of entry to workplaces, which Senator Abetz pontificated about earlier today. In 2007 Labor promised that we would strike a balance between the right of employees to be represented by unions and the right of employers to run their businesses. We have delivered on that commitment. To gain access to a workplace, union representatives will have to hold a permit and give 24 hours notice. There are other conditions there that are important and that apply and will continue to apply and which are consistent with the commitments of the party and the Deputy Prime Minister.

The great majority of Australian trade unionists, like the great majority of Australian businesses, know that this bill represents a fair compromise between the conflicting interests that exist in the world of industrial relations. This bill was not designed to give either trade unions or business organisations everything they wanted. It was designed to enable Australian workers and Australian businesses to resolve workplace issues through good faith negotiations, and to come to legally binding agreements. Where an issue cannot be resolved, the bill creates an independent umpire, Fair Work Australia.

This bill provides fairness and security to Australian workers and their families, and flexibility to Australian businesses. It conforms absolutely to the mandate which we were given by the Australian people in 2007. Those opposite have no excuse, no pretext, no mandate to oppose this bill or to introduce wrecking amendments. Mr Turnbull recognised this in November when he gave his pledge not to oppose this bill. Now Mr Turnbull and those opposite want to wriggle out of that pledge, but they have no grounds for doing so, and the Australian people will judge them harshly if they block or obstruct this bill.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Normally I like to thank other speakers for their contributions, but I have to say that Senator Feeney’s contribution was simply a sycophantic speech designed to ingratiate himself with his Labor comrades, the powers that be, in a quest to get promoted. There is no question about that. They are more interested in the internal dynamics of the Liberal Party and their own quests for promotion than they are in the cause and the interests of families and those who are determined to maintain employment while this government is determined to shut down employment across the country.

How can Senator Feeney condemn Peter Costello for saying that, given the economic circumstances we find ourselves in today, the government should rethink their bill on industrial relations? It was conceived ideologically because they immediately hate employers and they want to empower unions. It was also conceived in an environment when the economy was doing well, when businesses were productive, when employment was growing, rather than the catastrophe that faces so many families in this country because of the poor policy decisions of the government. This is another nail in their employment coffin.

Make no mistake about it, this is a job-destroying piece of legislation. It will force unemployment up. People are right to be alarmed about it, Senator Feeney. You know they are right to be alarmed about it because your party is acting in the interests of unions, not of working families in putting in this legislation forward. You are not interested in small business and the concerns that they have for their employees. Employers in small businesses, most employers that I know, and I have been one, care for their employees. They want to see them stay in jobs. They want to see them make a productive contribution to their businesses. That is common sense. You do not care about entrepreneurs and the people who are out there taking a risk with their houses and their own financial wellbeing because they want to employ another person. It is clear you have no regard for business owners and the people who drive the productivity of this economy because you are so hell-bent and focused on some ideological quasi-socialist nirvana that you are trying to create in Australia. But you are not just letting yourself, the people of Australia and the Labor Party down, Senator Feeney; you are letting the workers of Australia down. Those people fell under the spell of the svengali of spin, the prince of pork-barrelling. You know who I am talking about, don’t you? The emperor of the ALP. That is right: Mr Rudd himself.

The ALP made an enormous number of promises at the last election, and now they come in here and they tell us they are upholding their promises. Let’s face some facts. We on this side accept that people did not like all aspects of our previous industrial relations legislation. We also accept that the Labor Party went forward with an industrial relations platform at the last election and were elected. And I think that no small manner of their election was in fact due to dissatisfaction with our industrial relations platform. But no truer words were spoken in the last election than those of that giant of a man Peter Garrett. I will paraphrase him: ‘Don’t worry about it; we’ll change it all when we get in.’ And that is exactly what we see with this bill before the Senate today.

This bill is flawed. It is flawed because it is going to have an impact on every family, it is going to have an impact on employment and it is going to have an impact on individuals and business owners. But it is also flawed in the rhetoric, ‘We’ve got a mandate.’ How can they say, ‘We’ve got a mandate’? They do not have a mandate for some of the things they are introducing in this bill. But, more than that, this is coming from those who flatly denied when they were in opposition that any government has a mandate. They denied that the Liberal Party had a mandate to sell Telstra. Their policy to endorse the sale of Telstra only came after it was actually sold. They did not support the mandate from the continued re-election of the Liberal Party and the coalition government, despite the fact that we kept taking unfair dismissal to election after election after election. They did not do that. Do you know why they did not do it? They did not do it because they knew that they had to maintain the rage against reasonable, sensible policies that would help small business owners and the engine room of the economy and they needed the union movement to get back into government. They had to play sycophantic politics with the union movement because that is where their power came from. Stubbornly they clung to that and, ultimately, it worked for them. This is payback. They went to the last election making a number of industrial relations promises, but they have far exceeded them in this bill—in any number of areas, and I will touch upon some of those tonight.

The specifics of this bill actually give more power to the union movement than to employers. The government is under some misguided thought that empowering an already emboldened union movement is somehow going to do workers a greater favour than would removing the impediments to employment or supporting small business to perhaps take that extra risk and employ an additional person. The areas in this bill in which they have exceeded their previous promises include union access to non-union members’ records under certain circumstances and compulsory arbitration where enterprise bargaining fails. They have touched upon greenfields agreements. They are talking about union right of entry, the transmission of business and of course unfair dismissal. I would like to touch on a couple of those tonight.

Firstly, the right of entry. Back in May last year Minister Gillard said:

We promised to retain the current right of entry framework and this promise too will be kept.

Yet this bill expands the union right of entry. How is that maintaining the current right-of-entry process? So not only has she broken the original promise, which they claim they have a mandate for, but she has broken the promise that she made subsequent to that, to keep her promise. Make no mistake: under this bill more unions will be able to enter the workplace.

But more alarming than that, and genuinely alarming, is that unions will have access under certain circumstances to employee records, including the records of non-union members. That should send a shiver up the spine of every single employee, every single employer and every single civil liberties advocate in this country, because a lot of what is kept in personnel records is between the personnel officer or between the employer or business owner and the employee themselves. As someone who has employed people I know that you take into account certain circumstances in your dealing with employees based on their personal situation and circumstances. No-one has the right to pry into someone else’s records simply because they are a union official—to walk in and say, ‘Hey, give me Bill Smith’s file; I want to have a look at it.’ That is against the principles that we should hold very dear in this country and it is against the principles that I and my colleagues on this side of the chamber do hold dear.

Unfortunately, this is not what the Labor Party see. They only see that they owe the union movement and have to empower them. By empowering the union movement they are empowering themselves over there, because every single one of them is here because of the union movement. Now, I am not anti-union. You might think that I am after some of the things I have said. I respect people’s right to be a member of the union if that is what they want to do. If they want to give a union member or their union advocate access to their own file, that is their business, but you have no right to go prying into other people’s business in the hope of stirring up some sort of hornets’ nest that is going to result in people losing their jobs and businesses getting closed. That is the history: you gain, you take a step and you are always looking to take another one and infringing upon those who are driving our economy forward.

So, clearly, there is a departure from the current right of entry and what they are allowed to access. This is not about keeping a promise; this is actually about breaking a promise. This is about deceiving the people of Australia and hoping it will slip through. And, under a barrage of abuse about previous industrial relations policies, of heckling, of interjections and of jeers, all of which are designed to mask their true interest, this is about empowering the union movement. It is a very sad day when the senators on the other side of this chamber come in here and are happy to infringe upon people’s privacy and support legislation like that.

The other part I would like to talk about today is unfair dismissal, which is a contentious issue. No-one likes to think that their job is vulnerable. But let me tell you that there are no more vulnerable employees than those where the business owner is going broke—where they can no longer afford to feed their own family or pay their bills and will continue to struggle until they can make some changes.

When I speak of small business owners, to me it means the mums and dads who own the corner shoe shop or maybe the takeaway. They are people who have put their houses on the line to try to create better lives for themselves, their children and their employees. In small business we see lots of immigrants; we see lots of young entrepreneurs; we see people who say, ‘I do not want to go to university,’ and we see tradespeople; and they all go out there and take risks to build their businesses and to build this nation. Believe it or not, in employing people they take the greatest risk that a small business owner faces because part of the problem is that if things go bad, or you have a bad employee, it is very hard to make the necessary changes and the transition without severe financial penalties in some instances. So I support exemptions from unfair dismissal for small businesses and I do so because small businesses are too important to this country.

There is some talk in this bill about what constitutes a small business, and we all may have different definitions of it. The essence of it as far as I can see is that if you have 20 people or full-time equivalents it means that you, as the business owner, are the person who is doing the payroll and all the paperwork and you are working in your business as well as on your business and you are responsible for their welfare. In those circumstances we should be looking to remove red tape. As I said earlier, when you own a small business you do everything you possibly can to keep your good staff happy and productive. You counsel them and help them through the lean times—not only your lean times but their lean times, either emotionally or physically. You do what you can because that is in your interest. Your interest is in maintaining the business and when you have got good people you do everything you possibly can to keep them.

But under this legislation imagine the circumstance of your business having a year of buoyant times followed by a period when things get a bit lean. You no longer have the opportunity to make appropriate changes without incurring the wrath of some official who has possibly never worked in small business themselves and who will charge you money to redistribute the wealth to someone else.

Don’t think I am making this up on the spot, because I have been in this situation. I have been in a circumstance where I have had people in my business, which had fewer than 20 full-time staff, actually breaking the law. And when you say, ‘I am sorry, you cannot work here any more because you are breaking the law,’ the nameless officials come down on you and say, ‘You have done the wrong thing.’ To those nameless officials I say that I would do it all again. It costs you money when you go through it and you cannot go through the appeals process because it is too hard, too expensive and too tough. That is what has destroyed the incentive for a lot of people to create and build and grow their businesses. Yet this is exactly what this government is intent on bringing back.

We should be alarmed about this, because the legislation that was presented to us today oversteps the mark. If we accept the responsibility and the mandate we have then we should limit the changes to the industrial relations legislation to what was promised before the last election, not what has been cobbled together by the socialist alliance running rampant in the Labor Party today. We should not be looking at this legislation and saying, ‘No, we are not going to make any changes to it just because it was conceived in a time of prosperity.’ We are now entering into a time where people are doing it tough and you are going to make it tougher for them all. This is the great shame of it. This is not about partisan politics; it is about people. Right now people are struggling and the Labor government is putting an additional burden on people but they are dressing it up in new clothes and saying, ‘We are protecting you.’

But this government has already been exposed as having no clothes on so many issues. They have got the emperor, and if I have to be the one who says he has no clothes, I will. It is a sham and a charade. They are very good at the spin, they are very good at presenting these plausible arguments, they know how to run the news cycle and they have got a lot of journalists on the drip. But it is not about that; it is about helping people who are doing it tough. And people are doing it tough. They want jobs, but they are losing jobs hand over fist in this country under this government.

We have small business owners that want to get through a very tough time. And what are Labor doing to help them? They are increasing the regulatory regime. That is not the recipe for success. The recipe for success is empowering people to make decisions that will be in the best interest of their business, and the best interest of their business is to keep people employed as long as they possibly can—not to prevent employment, not to stop people from hiring now because they know they are going to be under some hard core IR regime. The hide of Senator Feeney to compare the previous government’s industrial relations policies to communist China or North Korea or Romania! I am not sure what the Romanian employment policies are but Senator Feeney clearly knows; obviously he holds these countries in reasonable esteem to have researched them.

What is important here is getting the best outcome for Australia. To get the best outcome for Australia we need to have flexibility, and flexibility starts with amending this legislation—not just the two principal areas that I spoke about but the six areas that I mentioned. We need to look at this. I call upon the Labor Party to stop being so stubborn. A mule can be a useful animal. I ask you to be a useful mule rather than the annoying—I will not say the word because I am not into swearing, but you all know what I mean.

Michaelia Cash (WA, Liberal Party) Share this | Link to this | Hansard source

Something the Prime Minister might say.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Yes, something the Prime Minister would say, but you will not find me saying it. Do not be stubborn about this. Think about the interests of Australia. Look at the amendments we are going to put forward because they are in the best interests of workers in this country. You can act in the best interest of workers in this country too, rather than simply looking after your union mates. They can look after themselves; they have hundreds of millions of dollars. Let us look after the workers that do not. That is a challenge to you guys today, to the Labor Party today—get a bit of bipartisanship in this and start working hard for the interests of Australia.

Don Farrell (SA, Australian Labor Party) Share this | Link to this | Hansard source

I thought Senator Bernardi would have had more empathy with the spirit of this bill given his recent treatment by his own boss. I am disappointed that he is not more empathetic with the spirit and the aims of this legislation. It is with a great sense of pride and satisfaction that I speak in favour of the Fair Work Bill 2008. Like many other senators who were elected in the last election, I ran because I was fundamentally opposed to the then government’s Work Choices legislation and had the misfortune to witness firsthand the unfairness that it visited upon working people in their workplaces.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

What about Linda Kirk?

Don Farrell (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Bernardi, you should have far greater empathy for those workers who were so unfairly treated, like yourself, by their boss. Senator Abetz said today, when he led the debate for the coalition, that Work Choices was dead. But there is a feeling on this side of the chamber that perhaps it is not really dead; it is just in an induced coma. Work Choices, as far as the coalition is concerned, is not dead; it is just in an induced coma and it is waiting for that horrible day when the coalition may return to government. But if, as Senator Abetz said today, Work Choices is dead then we owe it to Work Choices to give it a dignified burial. How do we give Work Choices a dignified burial? Of course, we pass this worker-friendly legislation, and we pass it this week. That is how we do it. After all, this legislation cost you the election. There is no doubt about that; it cost you the last election. It cost you a prime minister. You lost a prime minister over that. At least for those reasons alone you ought to give Work Choices a dignified burial.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Don’t you think you will ever lose an election?

Don Farrell (SA, Australian Labor Party) Share this | Link to this | Hansard source

Not if you keep supporting Work Choices, we won’t.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

We are not supporting it; you are supporting it.

Michaelia Cash (WA, Liberal Party) Share this | Link to this | Hansard source

You are obsessed with it.

Don Farrell (SA, Australian Labor Party) Share this | Link to this | Hansard source

You are the ones that keep talking. I am trying to finish my speech so as we can get on and pass—

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Farrell, I ask you not to incite interjections and I ask those on my left to stop interjecting. I note that Senator Farrell listened quietly to Senator Bernardi on my left and I ask that the usual courtesies be shown to Senator Farrell.

Don Farrell (SA, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. I will ensure that I address my comments through the chair. As I said, Work Choices deserves a decent burial, particularly for the way it affected working people—people like Annette Harris. Annette Harris was a worker for the Spotlight company, who was forced to sign an Australian workplace agreement on returning from holidays. She became the face of opposition to the Work Choices laws. As a long time John Howard supporter she became a symbol of how the Liberal Party had abandoned working families in favour of the interests of big business. One of the first retail companies to use the new legislation, the Spotlight chain offered Australian workplace agreements to its workforce that removed penalty rates and many conditions for just a 2c increase in their hourly rate of pay. My union, the SDA was able to get the company to reverse its decision in respect of Annette. It was powerless to help all the new workers the company was able to force onto Australian workplace agreements because of Work Choices.

Work Choices also needs a decent burial because of what it did to the technicians at Radio Rentals in Prospect, in my home state of South Australia. In one of the more shocking examples of how Work Choices contributed to the breakdown of employer and employee relations, Radio Rentals workers in South Australia were locked out of their workplace after wage negotiations broke down. The South Australian branch of the Australian Manufacturing Workers Union, very ably led by Secretary John Camillo, took up the case on behalf of their members at Radio Rentals and let the world know their story. Upon taking protected industrial action during a bargaining period, the Radio Rentals technicians found themselves locked out of their workplace when they attempted to return to work. The company was trying to force the workers onto AWA individual contracts that offered just a one per cent pay rise but cut out all of their redundancy pay, worth many thousands of dollars. The resulting dispute was one of the ugliest that I have seen and brought unnecessary hardship on both the company and the technicians. The Fair Work Bill, I am pleased to say, specifically states that if the majority of workers want a collective agreement then they are entitled to one.

Work Choices also needs a decent burial because of what it did to some of the most disadvantaged workers in our community: trolley collectors. Work Choices often left workers on low incomes without union representation, without a decent award system and without many basic minimum working conditions enshrined in law. It often left them exploited and underpaid. There was no better example of that than the plight of trolley collectors, who tried unsuccessfully, year after year, under Work Choices to get even a minimum wage, much less any other community standards in the workplace.

Most importantly, Work Choices deserves a decent burial because of what it did to young and part-time workers in this country, many of whom work in the retail industry. An AWA allowed employers to undercut the relevant award in the industry and avoid having to pay overtime or leave loading. The retail industry’s workforce comprises lots of young people, many of whom work part-time hours. One of the silliest assumptions of Work Choices was that, somehow, vulnerable workers had an equal bargaining position with their employers in national and multinational corporations. Many young people simply did not have the experience, the confidence or the skills to negotiate on an equal basis with employers who often employed whole departments devoted to implementing Work Choices.

Not only do Australian workers and their families want to see a decent burial for Work Choices, they want to see the Work Choices casket placed in the grave and covered with six feet of soil. Most particularly they want the Fair Work Bill passed. So I am very proud to be supporting this legislation that goes forward with fairness, restores balance in the workplace and promotes the dignity of ordinary working Australians.

Industrial relations has always played a central role in Australia’s political history. An example of that is the Great Shearers Strike in the early 1890s, which in part led to the creation of the Australian Labor Party. Back then, workers found that industrial gains that they had made in the workplace were taken away by conservative legislators in parliament. So the ALP was formed to pursue a social justice agenda in parliament. It had early successes, setting up the unique compulsory arbitration system.

The Harvester judgment in 1907 was a significant moment in our history. In his landmark decision, Justice Higgins famously ruled that workers’ wages ‘must be enough to support the wage earner in reasonable and frugal comfort’. It was a victory for common sense and an acknowledgment that in a civilised and humane society workers need to be paid a minimum wage that allows them to, at the very least, get by in ‘frugal comfort’.

In 1929 Stanley Bruce became the first Australian Prime Minister to lose both an election for his party as well as his own seat. Stanley Bruce went to the polls in 1929 on a policy of dismantling the Commonwealth Court of Conciliation and Arbitration. His aim was to rewind the precedent set by the Harvester decision and to implement a more laissez-faire industrial model favoured by the conservatives. This model was emphatically rejected by the Australian people, with the result that the Labor Party won the 1929 election in a resounding landslide. You might say, ‘The more things change, the more they stay the same.’ Eighty years later the coalition tried yet again to undermine the industrial relations system and dismally failed once again.

But until last week even the coalition did not come entirely clean on Work Choices. It was then that Peter Costello let the cat out of the bag. Work Choices was never an industrial relations system for the boom times. Work Choices was put in place for the hard times. It was all about taking away the rights of workers to protect themselves in an economic downturn. It is no surprise that Peter Costello has chosen this issue and this time to rejoin the national debate. Even with a cursory glance at the original Work Choices legislation, it is not hard to see why the legislation was so comprehensively rejected by Australian voters. Under Work Choices, workers were allowed—and in some industries were encouraged—to negotiate away their penalty rates, overtime pay, leave loading, allowances and meal breaks for essentially no increase in their hourly rate of pay. It has always amazed me that it took an election defeat for the coalition senators to see the fundamental unfairness in this system. Australian workplace agreements were at the forefront of the Work Choices policy. Work Choices sought to undo nearly 100 years of progress in industrial relations and was a complete ideological rebuttal of the Harvester decision.

The great irony in the industrial relations debate is the hypocrisy of the coalition’s position. They want to deny workers protection from the extremes of the market but are the first to call for protection when companies get into strife. They are happy for banks to get government guarantees but do not want workers to have protection from unfair dismissal. They support car companies getting government assistance but not job guarantees for workers in small car component firms who are unfairly dismissed. There is an important lesson to be learned by the Liberal Party from Work Choices: the Australian people are not interested in uncontrolled free-market ideology and extremism.

Australian workplace agreements, combined with no unfair dismissal laws and the many anti-union measures contained in Work Choices, created a system whereby all the power was in the hands of employers. While many employers sought to take advantage of workplace agreements, the consequential savings were paid out in largely undeserved higher executive salaries rather than being ploughed back into the business to grow it. The Fair Work Bill seeks to rectify the industrial imbalance created by Work Choices in favour of a system where the interests of both the workers and the employers are weighted equally against one another. And that is the way it ought to be. Both employers and workers have rights and responsibilities to one another. The industrial relations system of any nation should be designed to foster goodwill and cooperation between these two groups. This provision means that businesses will be encouraged to negotiate on a fair and reasonable basis with their workers and hopefully prevent disputes like the one at Radio Rentals. The Fair Work Bill is designed to provide a fair and just workplace relations system for Australia. It streamlines the industrial relations laws. The Fair Work Bill is only a third of the size of the overcomplex Work Choices legislation that stretched to over 1,400 pages.

The Fair Work Bill establishes 10 National Employment Standards that are conditions that cannot be traded away or undercut. These include: maximum weekly hours set at 38 for the ordinary working week; requests for flexible working arrangements where a worker is responsible for a child under school age, and the employer will only be able to refuse these requests on reasonable grounds; parental leave and related entitlements that will provide both parents with the right to separate periods of up to 12 months unpaid parental leave; annual leave whereby all workers are guaranteed four weeks annual leave and surplus annual leave above four weeks can be cashed out; personal carers leave and compassionate leave at 15 days; community service leave to protect workers participating in jury service or voluntary emergency management; guaranteed long service leave, most importantly; protected public holidays but employers able to make a reasonable request for an employee to work on a public holiday and the employee having the option to refuse this request; notice of termination and redundancy pay whereby all employees must be provided a written notice of termination and guaranteed redundancy pay calculated on their continuous service to the employer; and, lastly, the Fair Work information statement which outlines the National Employment Standards conditions to which workers are entitled must be provided by employers. The employment agreements can only be equal to or above the relevant award for that occupation.

The Fair Work Bill also provides all employees with access to unfair dismissal protection subject to qualifying periods. Workers will need to be employed for 12 months if they work in a small business of fewer than 14 employees or be employed for six months if there are 15 or more employees to have access to unfair dismissal provisions. This strikes the right and fair balance between the interests of small and medium sized businesses and their employees. Workers deserve to go to work without fear of being arbitrarily dismissed if they manage to annoy their employer.

The removal of unfair dismissal legislation by the previous government had serious implications for workplace occupational health and safety. By removing unfair dismissal protection the coalition government created a major disincentive for employees to raise concerns about unsafe work environments for fear of losing their jobs. And make no mistake about it: they would have lost their jobs had they complained. The Fair Work Bill will bring back a modernised award system to create certainty and clarity for workers in particular industries. The award system was undermined and neglected by Work Choices. Four-yearly reviews of each modern award will be conducted to maintain a relevant and fair minimum safety net.

To summarise, the Fair Work Bill finishes off the job started with the Workplace Relations Amendment (Transition to Forward with Fairness) Act. It destroys Work Choices once and for all, and all Australians will be significantly better off for it. The Fair Work Bill will establish a fair, equitable and balanced industrial relations system in Australia that takes into consideration the interests of both business and workers. All workers’ conditions will be protected by the 10 National Employment Standards that I have already outlined. Workers will all now have access to unfair dismissal protection after a qualifying period, and the Fair Work Bill provides for a simplified award system that will be managed by Fair Work Australia. There are many other excellent aspects of the new legislation that time does not permit me to discuss. However, I sincerely believe that the Fair Work Bill will bring back balance to workplace relations in Australia and will prove to be the new foundation of future economic and social advances for our great nation.

Michaelia Cash (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Bill 2008. The principal objective of the Fair Work Bill, according to the Labor Party, is said to be to create a national workplace relations system that is fair to working people, flexible for business and promotes productivity and economic growth. The bill would appear to be based on the premise that there are working people or employees commonly known as ‘people who have jobs’. This is wherein the problem lies. There is a fundamental flaw with this premise because the Labor Party assumes as a matter of fact that the substance of the bill in its current form will not affect the ability or the capacity of employers to maintain jobs at least at present employment levels and, as a consequence, there will be no change to the job prospects of an employee. Nothing could be further from the truth or reality. The Labor Party has failed yet again to contemplate the consequences for employers and employees that will inevitably flow from the adverse aspects of the bill. To be brutally frank, there will be no working people, there will be no employees, there will be no employee rights and there certainly will not be any employee entitlements that need to be protected if a person is not given the opportunity to work, if they do not have a job as a consequence of the probable impact of certain parts of this legislation.

Mr Rudd and Labor seem to have forgotten that it is employers who create jobs. Governments do not create jobs; what they do, however, is provide an economic environment that is conducive to job creation. Alternatively, as with the bill before us, they can create an industrial environment that will inevitably result in job losses. The coalition, on the other hand, is committed to one of the most important objectives of economic management: ensuring that every Australian who genuinely wants to work has the opportunity to work and to fulfil a worthwhile role by supporting themselves and their family. We in the Liberal Party believe that it is a fundamental role of government to assist in creating an economic and industrial environment that both is conducive to creating jobs and, indeed, stimulates the capacity of the private sector to create jobs for those who want to work.

If you look at comments made by senior members of the Labor Party, you would think that they too are committed to ensuring that Australians are given the opportunity to work. However, one thing that we do know about the Labor government is that they are skilled in the art of rhetoric—telling the people of Australia one thing and then, when it comes to delivering, doing something entirely different. Look at what the Deputy Prime Minister has said in relation to jobs. In an article in the Chronicle on 31 December 2008 she is quoted as saying:

The loss of any job is a huge problem for the individuals involved and what we do as the government, is be out there investing in jobs, protecting jobs, and helping people who lose their jobs in one part of the economy to get into the parts of the economy that are still growing.

This was reiterated by the Deputy Prime Minister in an interview on ABC radio on 16 January 2009. And who can forget the impassioned plea by the Prime Minister urging business leaders to do whatever they can to prevent job losses?

Based on those statements, one might be entitled to believe that the proposed Fair Work Bill would actually be consistent with its stated objective. However, as with much of the legislation put forward by the Rudd government, the devil is in the detail and the spin and rhetoric often shroud the real intentions of the Labor Party. On closer examination, many provisions of this legislation in their current form will fail to give business—the creator of jobs—the industrial conditions and confidence that it needs in order to provide jobs and opportunities for the people of Australia. It would appear that yet again the statements by the Prime Minister and the Deputy Prime Minister are no more than rhetoric aimed at lulling the people of Australia into a false sense of security so that the Labor Party can get on with its real intention, and that is to protect its union mates, who the Australian Electoral Commission’s records show are Labor’s greatest financial supporters. I note that on page 6 of the government report into the Fair Work Bill it states:

In current economic conditions the government believes it is all the more important to deliver certainty and stability regarding workplace relations laws.

The only certainty and stability that will be delivered to business if this bill passes in its current form and the government fails to take into consideration the amendments proposed by the coalition is that Australians are going to be denied the fundamental right to a job. The evidence is clear.

But I am a senator for Western Australia and, as such, it is my priority to ensure that we maintain and, hopefully, expand upon jobs in Western Australia. We in Western Australia want a fair workplace system that encourages employers and gives them the confidence to take risks and provides job opportunities to those who want to work. We do not want a system that discourages employers and has the effect of shrinking business confidence and job opportunities. Let us face it: within Western Australia the mining and petroleum industries are big business and big employers. The cold reality of the global market, if the provisions in this bill diminish employment opportunities in the mining and construction industry, is that this not only will be bad for the Western Australian economy but will have resulting flow-on effects to the Australian economy and to our balance of payments, which clearly impacts upon the value of the Australian dollar. Alarm bells are ringing in Western Australia in relation to the impact of the legislation in its current form. To quote the Western Australian Minister for Commerce:

The WA Government is concerned that the bargaining, transfer of business, unfair dismissal and right of entry provisions of the Bill will negatively affect Western Australian workplaces. It is critical in the current economic climate that workplace laws encourage flexibility, productivity and business confidence.

I have already stated that the devil is in the detail of this legislation, so let us have a look at some of those areas which, if passed in their current form, may well lead to job losses and are at odds with the Rudd government’s promise as to what the legislation will do. Right of entry—when is a promise not a promise? When it is made by the Labor Party and it relates to the increased power of unions. There is no denying that one. The federal government’s policy commitments as set out in their much publicised Forward with Fairness contained an express commitment to retain existing right of entry provisions. This commitment was unambiguous but for the fact that it was made by the Labor Party. In a speech delivered in April 2008, the Deputy Prime Minister stated:

… the current rules in relation to right of entry will remain.

This statement could not be clearer on the face of it. In fact, it is not possible to misunderstand this statement. However, as it always is with Labor, the devil is in the detail, and the details of this legislation show that this earlier unambiguous statement by the Deputy Prime Minister could not be further from the truth.

As I am from Western Australia, where the union movement has controlled state Labor governments for many years, I may well be cynical enough to say that the changes in this bill to the right of entry laws do little more than pay back the union movement for pouring millions into the Labor Party campaign machine at the last election. I might even be bold enough to say that there is nothing fair about the Fair Work Bill unless you are a union boss or a union heavy. Despite promises of a fair go for working Australians, all Labor has done in this bill is reward its union mates. But why am I so concerned? Quite simply, because I am from Western Australia and we have Joe McDonald and Kevin Reynolds. We also have the findings of the Cole Royal Commission into the Building and Construction Industry, which found widespread disregard of obligations concerning unions’ power to enter work premises and inspect employment records.

With this legislation it is back to the good old days and the standover tactics that the Cole royal commission made reference to. God help industry in Western Australia and God help the people who now have jobs but may lose them as a consequence of the Rudd government handing back unbridled power to the unions. There is no ‘public good’ policy reason for the shift in right of entry or access to include access to non-union-member records. Why does the Rudd government insist upon this type of access? We all know the answer, and that is it is designed to increase union power and will be used by the unions to ‘encourage’ nonmembers to join the union movement.

A return to the good old days is also found in the default bargaining agent provisions of the bill. The bill provides that, where an employee is a member of the union, their bargaining agent automatically becomes that particular employee’s union, unless that employee opts out and elects an alternative agent. The old opt out clause is a subtle backdoor approach to increasing union influence in workplaces, because the legislation is drafted in a way so that the onus is placed on the employee to dare opt out, which they will not, and nominate an independent bargaining agent.

The bill provides for a simpler and fairer scheme to deal with the transfer of employment rights and obligations if there is a transfer of business and a new employer takes on employees of the old employer. There is a fundamental flaw in this basic premise. The Labor Party assumes that the new employer will take on the employees from the old employer. However, there is substantial evidence from industry—from those people who are the employer part of that equation—that the proposed provisions are in fact anti employment and will create a disincentive for companies to retain and employ the existing staff of a business. The Australian Industry Group was unequivocal in their evidence to the Senate inquiry about the effect of the new provisions. It stated:

The provisions are anti employment and would create a huge incentive for companies not to employ workers of businesses they take over.

Evidence direct from a large employer in Western Australia, the Compass Group, before the Senate inquiry into the Fair Work Bill was:

The way the bill is structured, what it fundamentally will do is put businesses such as ours in the position that we will say that, unless there are very good, compelling reasons to take on existing employees from the client, frankly we will not do that. It will be less convoluted for us to simply employ fresh people and then not be burdened with the transfer of business provisions.

How is that good for the average Australian person? It cannot be clearer. The employers have spoken. The proposed transfer of work provisions create a disincentive for someone purchasing a business. Forget protecting employee entitlements—which, allegedly, is what this amendment is meant to do. There will be no employee entitlements to protect because the employee will not have a job.

In relation to greenfield agreements, a number of concerns were raised by industry. There is clear evidence from the construction industry that the legislation in its current form will make construction and infrastructure projects more expensive and will cost jobs within the construction industry. Wilhelm Harnisch, CEO of the Master Builders Association of Australia, has warned that certain clauses in the bill have the potential to increase the level of industrial disputation and make it harder to reach agreements. The Western Australian Minister for Commerce said in evidence:

Our view is that the changes to greenfields agreements and the requirement now whereby employers will be required to notify all relevant employee organisations has the capacity to significantly … frustrate negotiations where unions have overlapping coverage of employees.

The Western Australian economy over the last decade or so has primarily been driven by investment in capacity building in the resources sector; in other words, by construction activity building capacity in the resources sector. The proposed legislation has the potential to impact and frustrate the economic development of Western Australia.

These concerns were reiterated in evidence from the WA Chamber of Commerce and Industry to the Senate inquiry into the Fair Work Bill. Perhaps the most compelling evidence in relation to greenfield agreements again came from Mr Harnisch in his evidence before the Senate inquiry. He explained the actual impact of the proposed provision on project costs:

A member has informed us of their experience with making a current union greenfields agreement. That company has informed us that making a greenfields agreement with one union rather than with the union’s rival organisation was estimated to have saved up to $80 million on one project and around $15 million to $20 million on another project. These are savings which relate to infrastructure projects and moneys that are better spent on that purpose than on escalating the cost of those projects. We cannot emphasise enough that confidentiality in making a greenfields agreement with one union is an outcome from the bill that would be a great boost to productivity when compared with the proposed scheme.

The close association of this witness with the realities of the building and construction industry make this evidence particularly compelling. Unless this particular part of the legislation is amended, there is no doubt that we will see substantial delays in the commencement of construction projects and increased construction costs. This is not good news for industry and it is certainly not good news in Australia.

One other area that I would like to raise is about the default funds for superannuation. A number of submissions were made that employers and employees require choice when determining what fund they want to place their superannuation into. Under the award modernisation process, a number of the funds that have been allocated as default funds are industry funds; they are union funds. Where is the choice when an employer has to put money into a union fund? This part of the legislation needs to be changed to provide for genuine choice of default funds.

The bad news for employers and employees in Australia is that they are the ones, as Senator Bernardi has stated this evening, who will have to bear the brunt of Labor’s flawed industrial legislation. Regrettably, while the stated purpose of this bill is actually meritorious, the detail shows us that the rhetoric of the Labor Party is not to be trusted. The Liberal Party believes that every person in a developed economy such as ours who wants to work and who is able to work should be given the opportunity to work. It is a fundamental right of a person living in Australia to be able to work. For this to occur, we believe in creating an economic and industrial environment that is conducive and, indeed, encourages job creation.

We in the Liberal Party have three main policy objectives when it comes to the people of Australia: jobs, jobs and more jobs. We know that it is small, medium and large businesses and not governments that generate the opportunity for job creation and job growth. I implore the Rudd government to seriously reconsider those aspects of the legislation—we are not asking the government to reconsider all of it—that are anti employer and anti jobs. If you do not have a job, you have no entitlements. I say to the Labor Party: ‘Don’t crucify the people of Australia in an attempt to advance your own cheap political agenda.’

Given the global economic downturn and its impact on the Australian economy as well as the rapidly increasing levels of unemployed across Australia, this is not the time to further jeopardise the jobs of hardworking men and women who are clearly battling to weather the tough economic times. Legislation that detrimentally expands the rights of unions and discourages employers from creating employment is bad policy, regardless of the prevailing economic conditions. It is bad for this country and so, in certain aspects, this bill must be amended.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

It is indeed with much pleasure that I rise to add my voice in support of the Fair Work Bill 2008. On behalf of the thousands of Australian workers who were forced to suffer at the hands of the previous government under Work Choices, I make a contribution to reflect on and to savour the significance of the introduction of this bill. During my contribution back in 2005, when the former government used its dominance in this place to rubber-stamp its Work Choices agenda, I said that, when it comes to the industrial relations system in this country, ‘it is about basic values and the lives of real Australian families’; it is about the value at the heart of this nation—a fair go for all.

While the previous government spent a huge amount of money on—indeed, as Senator Feeney stated in his contribution—an ‘avalanche’ of propaganda trying to convince Australians that these ideas were good ideas, it never worked. The election of the Rudd government with its clear mandate to get rid of these unfair laws is a direct reflection of that, as was the loss by the former Prime Minister, Mr Howard, of his own seat. He is only the second PM to do so. The Rudd Labor government is committed to removing Work Choices and creating a fairer and simpler workplace relations system for all Australians. Indeed, it was arguably the government’s commitment to workplace reform that provided one of the strongest platforms for its election. An industrial relations system which balances fairness with flexibility is crucial in economically turbulent times.

Workers deserve to have their basic rights protected and to enjoy a reasonable degree of certainty when it comes to going to work. After all, in a lot of cases, it is not only their livelihood but also that of their family that is at stake. The bill delivers on the government’s commitment prior to the last election to get rid of the Howard government’s extreme and unfair Work Choices laws. In doing so, the Fair Work Bill also delivers on the Rudd Labor government’s Forward with Fairness policy, which was released prior to the last election. This represented an historic day for Australian workers and their families who, under the previous government’s Work Choices legislation, had their basic rights and working conditions stripped away.

We must not forget the situation that was allowed to occur under Work Choices, nor should we ever fall into complacency, believing that such a situation will never be allowed to occur again under a coalition government. Still today the coalition is not committed to delivering the government’s mandate. Still today Work Choices is not dead. Still today there are those who are desperate to hang on to a discredited, unwanted and shameful piece of legislation. Mr Howard might not be here but his policy legacy and his acolytes are.

Let me just take a moment to remind senators of the devastating impact that Work Choices had on workers. In Tasmania, on 12 September 2007, Allison from Devonport and Ellen from Burnie were sacked by Video City for ‘operational reasons’. They were really sacked for refusing to sign an AWA and for seeking union assistance. This is what they had to say:

It impacts on your whole family and your self-esteem. I didn’t like being forced out of work for no good reason, and it was a job I really enjoyed.

Louise and Debby—Debby is a young woman whom I grew up with in Warrane—worked at a hotel that has had many different names over the years. They were sacked for refusing to sign an AWA. The Mornington Inn, as it was called then, was prosecuted and fined for duress, but Debby and Louise were not reinstated. They did not get their jobs back. This is what Debby and Louise had to say:

I had worked there since I was a teenager. When they gave us the AWA I was numb. It was such a big, unfair change.

They are real life experiences and, as we all know, there were many thousands more just like those.

Those opposite would have you believe that any fairness in the workplace should be sacrificed in light of the current global uncertainty and that the Fair Work Bill will have a negative effect on employment levels. They will say and do anything to hang onto this extreme piece of ideologically driven legislation. In the chamber Minister Julia Gillard had this to say on the latest coalition propaganda:

… every day they used to stand at this dispatch box and say that Work Choices was the thing that was propping the economy up. Not many opposition members make those claims now. They were silly then; they are silly now. Obviously, there are a variety of factors that go into the employment horizons in our economy. What the government has been saying very clearly is that we are not immune from the global financial crisis, and everything we have done has been to keep this nation in front and protect jobs. But one of the things we also need to do is make sure we do not leave employers and employees in months of legislative limbo and uncertainty about what the workplace relations laws of this country will be. In these difficult times we should be delivering certainty, stability, productivity and flexibility, and that is exactly what this bill does. We need employees to have confidence that their pay and conditions are secure …

This bill builds on the Workplace Relations Amendment (Transition to Forward with Fairness) Act, which ended the making of AWAs, introduced a genuine no disadvantage test for agreements and commences award modernisation.

This bill provides a framework of workplace rights and obligations that is fair to both employees and employers. It is easier to understand in terms of structure, organisation and expression and reduces the compliance burden on business. Indeed the bill is just over 600 pages, compared to the cumbersome 1,500 page Work Choices legislation. It contains six chapters: an introduction; terms and conditions of employment; rights and responsibilities of employers, employees and organisations; compliance enforcement; and administration.

The bill’s features include a fair and comprehensive safety net of employment conditions that cannot be stripped away. These are made up of the National Employment Standards, which apply to all employees and can not be overridden, and modern awards made by Fair Work Australia on an industry- or occupation-specific basis. The National Employment Standards provide protections for the most basic employment rights and conditions, including maximum hours of work, annual leave, parental leave, notice of termination and redundancy pay. The bill also includes a new framework for fair enterprise bargaining, with a focus on collective bargaining, rather than on individual agreements that were allowed to be used to ‘bargain down’ under Work Choices.

As the Deputy Prime Minister and Minister for Employment and Work Place Relations, Julia Gillard, said in her second reading contribution:

This bill delivers to the Australian people what we promised them—fair protections and a productive workforce.

While up until now the new Leader of the Opposition has been happy to take the populist line, declaring that Work Choices is dead, the tide has begun to turn, and he and those opposite, as we all expected, are now beginning to show their true colours—looking for every and any excuse to oppose the measures contained in this bill. What can we take from this? That, even after a good year in opposition and the election of a new leader, the Liberal Party will never guarantee not to return to a repressive Work Choices style of industrial relations system in the future.

We must never forget. Work Choices was an assault on Australian workers and their families. It undermined job security by leaving many Australians vulnerable to unfair dismissal. It left many lower paid workers at the mercy of employers who introduced AWA individual contracts which slashed basic rights and conditions, and it replaced the award safety net with just five minimum conditions. By doing so, Work Choices not only eroded workers’ rights; it threatened to erode the basic standard of living in this country, and what was allowed to occur was a race to the bottom, with many Australian families who could little afford it being progressively forced to forgo basic necessities and survive on less and less.

The Rudd Labor government made a strong statement to the Australian people before the last election that such an assault on Australian workers and their families had to come to an end—that the concept of fairness must once again be restored in the Australian workplace. This bill delivers on that commitment. Indeed, respecting the fundamental rights and conditions of Australian workers is essential if we are to progress this country and to secure a decent standard of living for all Australians. The Rudd government, unlike the previous Howard government, understands this.

The government’s new workplace relations system will provide a strong safety net that workers can rely on in good and not-so-good economic times. Indeed, this security takes on arguably increased significance in uncertain economic times. We need all Australians to be working together to increase productivity and drive employment growth. The challenging global economic conditions we are currently experiencing make it more crucial that we have a workplace relations system which is strong and fair and which helps drive the economy. That is why the government has made the new workplace relations system fairer and more balanced, protecting workers but at the same time not placing unreasonable demands on enterprise. Under the government’s new system, the pendulum has been brought back to the middle, drawing the rights of workers and their employers closer together, where they should be.

While the introduction of this long-awaited bill into this place will undoubtedly generate considerable debate, ensuring that not everyone will be completely happy, in drafting the legislation the government has taken the time to conduct an unprecedented level of consultation with stakeholders right around the country. The minister, I understand, has also taken the time to discuss its details further with the minor parties and Independents. The government has listened and it has consulted, and the result will hopefully be the passage of this bill and the introduction of a workplace relations system that is fair and balanced.

And, as I have mentioned, the bill takes on increased significance in these troubled economic times. This is no time for games, for scaremongering and for preventing the protection of the most basic rights of Australian workers. In stark contrast to what is being peddled by those opposite, now is the time when our workers most need fairness to be renewed in the workplace. Now is not the time to desert Australian workers, nor is it the time to sacrifice fairness in the workplace. I remind those opposite that not only are workers’ rights at stake, but their jobs and livelihoods are at stake. It is time to get the balance right.

I look forward to all Australians benefiting from the certainty offered by a fairer workplace relations system and I am glad, in some small way, to be here to witness the passage of this bill—the bill that ends Work Choices. And on behalf of Australian workers and their families, I wholeheartedly commend the bill to the Senate.

Mitch Fifield (Victoria, Liberal Party, Shadow Parliamentary Secretary for Disabilities, Carers and the Voluntary Sector) Share this | Link to this | Hansard source

Australian politics does remorselessly return to industrial relations and tax policy. Most elections are fought around one issue or the other, and the last election was no exception. It really is through tax and industrial relations policy that the two major parties seek to define and differentiate themselves, and in these debates this side of the chamber is always for empowering the individual, trusting the individual to make decisions about their future. The other side, in contrast, is always trying to pare back the freedom of the individual, never fully trusting the individual to make their own decisions. The legislation before us today, the Fair Work Bill 2008, is merely the latest manifestation of an approach that fundamentally lacks faith in Australians and their capacity to chart their own course.

In an effort to detract attention from this reality and the details of their own policy, I expect Labor senators will devote much time and many words over the next two weeks to talking about legislation that is in fact no longer coalition policy. What we will not hear, however, from a single Labor senator in this debate is how their legislation will free Australian employers and employees. What we will not hear from a single Labor senator in this debate is how this legislation will improve the productive capacity of the nation. What we will not hear from a single Labor senator in this debate is how this legislation will increase employment in Australia. Furthermore, we will not hear from a single Labor senator a guarantee that this legislation will not destroy jobs. We will not hear any of these things, because this legislation does none of these things.

What we need to have is an open and honest debate. We need to be able to carefully examine the detail of this legislation to ensure that it really is in Australia’s long-term interests, as the government contends. What we do not need is the erection of straw men. What we do not need is a scare campaign. What we do not need is a debate that focuses on the past rather than the future. On this side of the chamber, our priority is jobs.

The Australian people, it must be said, made a choice at the last election, and Labor will remind the chamber of this over and over again in this debate. The coalition heard the many messages contained in that election result. We could waste our time debating mandate theory—perhaps the most abused of political concepts—but, even if for argument’s sake one was to accept Labor has an industrial relations mandate, Labor only has a mandate to introduce the changes promised in its pre-election commitments. The government, according to its own embrace of mandate theory, should not be introducing legislation that exceeds those commitments. Had the Labor Party taken more radical changes to the last federal election than the policies they proposed, they might not have won the last election and the make-up of this chamber might have been quite different. It is our role as an opposition to ensure at the very least that Labor does not force through changes the Australian people were not told about prior to the last election, and this is particularly important in tough economic times.

Treasury and most economists have already predicted large increases in unemployment, and that is without taking into account workplace relations policy which makes it harder for small business to hire staff and without taking into account increased union power in the workplace. Labor are proposing to introduce policies which will destroy jobs and make tough times harder for small business. In its current form, Labor’s Fair Work Bill is anti jobs. Labor’s Fair Work Bill massively expands union rights and will discourage business from creating new jobs. It risks putting more Australians out of work. The last thing business needs in the current climate is workplace relations laws which strangle small business, and we fear that Labor’s Fair Work Bill will do just that.

The coalition will be offering a number of amendments to improve this bill, and hopefully the government will accept them. First and foremost, the Fair Work Bill expands the right of entry for union reps. This is a clear breach of Labor’s pre-election commitment. In August 2007 Julia Gillard said:

We will make sure that current right of entry provisions stay. We understand that entering on the premises of an employer needs to happen in an orderly way. We will keep the right of entry provisions.

Well, not so. The Fair Work Bill overturns the current law which limits access for unions to those who are party to an industrial agreement in the workplace. This will expand the number of unions who can enter a workplace, and we all know what happens when two or more unions get on the same turf: they fight tooth and nail for coverage. The last thing Australian businesses need is a series of uninvited demarcation disputes. They disrupt workplaces, distract employers, distract employees and ultimately only benefit the winning union, not the employees or the company concerned. The coalition believes that employees should decide through a democratic ballot if they want a union in the workplace and which union it should be before entry can occur.

A further change to union power is Labor’s plan to grant unprecedented access to employment records. Under the Fair Work Bill presented to us here today, union officials will be granted the power to inspect any records relating to a dispute. Absurdly, this also includes records of non-union members. All they need is a single union member to make a complaint. Unions could potentially access a raft of private information to use for their industrial and political benefit. The pay arrangements of senior executives or the CEO, super fund contributions, bonuses paid to employees, criminal background checks, medical certificates and disciplinary proceedings could all be opened up to those union officials. This raises very serious questions about the privacy of non-union members. Employees who do not wish their employment records to be handed over to unions will be powerless to intervene. The existing law in this area should be retained. The records of non-union members should only be provided to union officials by consent from the employee or if ordered by the tribunal.

In an economic climate in which new business activity should be encouraged as much as possible, Labor’s greenfield agreements send a bizarre signal to businesses. This provision requires a business to notify all unions who may have coverage of members at the site that they intend to make a new agreement. If any union chooses to participate in the process and negotiate with the employer, the employer must recognise and reach an agreement with the union before any work can proceed. Obviously, this offers enormous potential to delay the commencement of new projects. Any union choosing to use their enhanced power in these circumstances can force indefinite delays, effectively holding businesses hostage to their demands. When new projects that create employment should be welcomed and encouraged, granting unions a right to veto any new projects until they get their desired conditions is economic vandalism. This means that an employer may be able to reach an agreement with the major union representing the majority of employees concerned, but a union who represents just a handful of affected employees can wield disproportionate influence over the project. The coalition believes that the requirement to notify unions of a greenfield agreement being made should be removed from this bill. We do not believe that the Australian economy and Australian workers should be forced to be subject to delays and protracted negotiations over new business projects in the current economic climate.

In addition, before the 2007 election the Deputy Prime Minister, Ms Gillard, promised that Labor would not introduce compulsory arbitration of collective agreements. She said in May 2007:

Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

Yet this bill empowers Fair Work Australia to arbitrate where parties cannot agree during collective agreement negotiations. It is effectively compulsory arbitration, and it could see an arbitrated agreement forced upon parties by the tribunal. Only genuinely voluntary arbitration should take place between parties who cannot reach an agreement. An arbitration which forces unwilling partners to a tribunal with a mandated outcome will not produce harmonious or productive industrial agreements.

It must be said that the government has also failed in a number of other key areas of this bill. Firstly, the coalition is concerned about the changes to unfair dismissal laws in this bill, which reduce the exemption from small businesses of 100 employees down to 15. Removing this exemption for small businesses runs a very serious risk of discouraging the hiring of new employees. We know that many small businesses have been burdened in the past with vexatious claims. The fear of unfair dismissal action by disgruntled former employees may again make small business owners reluctant to take on new staff—and I can think of few things more damaging in a climate of rising unemployment and in a climate of economic uncertainty.

Secondly, even in the current economic climate no modelling has been conducted into the economic impact of introducing this industrial relations regime in the middle of an economic crisis. The opposition has repeatedly asked and called upon the federal government to undertake, and then release, economic modelling into the impact of this bill. Without this modelling, the government is asking all of us to take it on faith that its policies will not hamper economic growth and employment. The government is resolutely mute on the employment implications of this legislation. Unfortunately, the opposition does not have faith in the government’s assurances.

The government’s track record is not good. The pre-Christmas $10 billion cash splash supposedly created 75,000 jobs. Since that time unemployment has risen and not a job can be found that was created as a result of the cash splash. The government has been unable, despite its best efforts, to point to a single new job. In Senate estimates Treasury admitted that there was actually no way of proving that it had succeeded, that jobs had actually been created. Subsequently, the government introduced its $42 billion junk spending splurge, which we are told will support 90,000 jobs. Again, the government has been unable to point to where or how these new jobs will be ‘supported’. It has dropped the word ‘created’ because it does not believe that itself, so the word ‘supported’ is now embraced.

Clearly, making it more difficult for businesses to reach agreement with their employees by increasing the power of third parties is going to hurt employment. Clearly, increasing regulation that small business has to comply with during an economic crisis is going to hurt employment. Clearly, allowing union organisers to knock down the door and enter virtually any premises they want to whenever they feel like it and allowing them to access private employment records is going to hurt employment. I know that Labor has a very big IOU to pay to the union movement. I know it is in the government’s political interests to increase the strength of unions, so increasing the strength of those unions that helped them win the last election. But we are in the midst of an economic crisis and any legislation that destroys jobs in the middle of an economic crisis is vandalism.

The coalition is going to offer sensible, practical jobs focused amendments to this bill. We are going to focus on the future. We are not going to look in the rear-view mirror like those opposite. Labor will shortly have the opportunity to demonstrate if they truly want to govern in the national interest or merely in their own political interest. I hope that Labor do accept our amendments. They are offered in good faith. They are offered because we believe they will improve this legislation and because we believe they will lead to increased employment.

Perhaps the best way to look at the coalition’s six proposed areas for amendment is as a six-point jobs plan. We offer six points that will make it easier for employers to hire staff and retain staff.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You nearly said ‘hire and fire’, didn’t you?

Mitch Fifield (Victoria, Liberal Party, Shadow Parliamentary Secretary for Disabilities, Carers and the Voluntary Sector) Share this | Link to this | Hansard source

No. Let me repeat that: we offer six points that will make it easier for employers to hire staff and retain staff—and that is for the benefit of Senator Marshall. The coalition has a plan to increase employment. Labor has a plan to destroy jobs. But it is not too late for the government to read the sign that business is holding up. The sign says: ‘Wrong way! Go back!’ I hope government senators will read that sign and will act accordingly to facilitate improved legislation that will not destroy jobs. If this six-point plan that the opposition is presenting is followed, this legislation will lead to more jobs than would be the case if this legislation were to be passed unamended.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Bill 2008. This legislation presents this chamber with a very important and serious opportunity: the chance to bring some fairness and some balance, some decency and some dignity back into workplaces across Australia. It is a chance to move towards restoring the rights and financial and job security of workers, a chance for employees to reclaim a reasonable work-life balance, a chance for workers to once again enjoy a fair way of striking a workplace bargaining agreement.

On 24 November 2007 the Australian people took up the metaphorical spade in the ballot box and they dug the grave of Work Choices. The opposition, while licking its considerable wounds soon after polling day, pronounced this disastrous policy’s last rites. And yet there are members of the Liberal and National parties who would like to see it revived. Some, including their leader in waiting, Mr Costello, have refused to rule out giving Work Choices CPR should they ever have the opportunity of returning to government. He told Channel 9 in relation to these changes:

[They] might have been OK in times of good growth, but will affect jobs in a downturn.

And yet the coalition brought in Work Choices during the previous world boom times. One must question Mr Costello’s logic.

It has been suggested to me that it would not be surprising to see some of those opposite gathered around a ouija board in a dimly lit Parliament House office late at night, attempting to invoke the dark Work Choices spirit. That coalition catchcry ‘Work Choices is dead’ smacks of insincerity and it sticks in the throats of those on the opposition benches forced to utter it.

Of course, ironically, those who support Work Choices are anything but champions of choice. It is a fact that this extreme legislation took choice away from the Australian workforce. It was enacted without consultation with the Australian people or a mandate from the Australian people. It stripped pay, conditions and, ultimately, dignity from many employees, including the most vulnerable and marginalised workers, among them the young, the financially stressed and women. Labor went to the 2007 election with a pledge to the public to repeal these draconian laws, to bury these laws that hurt families and hurt workers by attacking their rights at work; laws that attacked their overtime, their holiday pay, their public holidays, their redundancy provisions and their meal breaks, their rights of association at work; laws that attacked the Australian belief in a fair day’s pay for a fair day’s work and a fair go for workers; laws that undid a century of progress in industrial relations in this country; laws that made the words ‘fairness’ and ‘balance’ obsolete in a workplace relations context; laws that put almost all of the power in the hands of the employers and tied the hands of employees; laws that slashed unfair dismissal rights, fostered agreements which decimated the safety net and rendered the independent industrial umpire impotent; laws that left workers without an effective right to bargain collectively, marginalised unions and failed to create a truly national system; laws that were all about AWAs while awards were left to wither away; and laws that were unfair, unbalanced and ultimately un-Australian.

It was no surprise then that the Australian people rejected the Howard government and its Work Choices laws unequivocally. The Howard government—Mr Costello, Mr Turnbull, Ms Bishop, Mr Abbott and those now on the opposition benches—went too far and took away too much from too many. The Australian voters said they had put up with more than enough: enough pain, enough exploitation, enough abuse of power, enough of pitting employee against employer, enough of just letting the market rip; enough of the divide and conquer mentality. Still Mr Howard and his followers wanted more. In fact, those opposite, those sitting on the opposition benches, still want more.

The Fair Work Bill aims to deliver on the Rudd government’s election promises to move forward with fairness from some of the darkest days in workplaces and homes around this country. The new legislation will guarantee minimum standards for workers. It is designed to balance the needs of employers and employees and ensure that each has access to simple and clear information on their responsibilities as well as their rights. It will move towards re-establishing stability and certainty for workers and their employers—always important but never more so than during the current global financial crisis. Its passage through this place will see the workplace pendulum start to move back from the far right.

In stark contrast to Work Choices, which was rammed through the parliament once the Howard government gained a majority in the Senate, this bill has been born out of many months of consultation and negotiation. Unlike its predecessor, it stands firm on an overwhelming and undisputable mandate for change. The government went through an extensive and thorough consultation process—including regular meetings with union and employer groups and state and territory ministers—to develop this bill. The Fair Work Bill is designed to give workers renewed confidence, thanks to its structure for clearly outlined minimum wages. Workers will also enjoy a return to freedom of association in the workplace. Low-paid and vulnerable employees, those without access to collective bargaining, will not be forgotten by this legislation as it restores the rights of representation in the workplace. It gives a voice to those who did not have one under the previous heavy-handed regime.

These new laws have good faith enterprise bargaining at their heart, a move that will drive productivity. These laws are underpinned by a strong, durable safety net of basic worker conditions and entitlements. These basic rights include overtime and penalty rates, leave related matters, superannuation, consultation, representation, dispute resolution procedures, and minimum wages and classifications. These conditions cannot be traded away or undercut. It is fair to say this is a significant improvement on the Work Choices framework which was introduced into this parliament in 2005 and became law the following year. The Fair Work Bill’s safety net of enforceable and relevant minimum terms is reliable for all economic circumstances, whether in good or troubled times, such as those we now face. These National Employment Standards were developed after a full public consultation process.

Another major aspect of the new laws is the establishment of Fair Work Australia, a new independent industrial umpire which will replace various bodies, including the Australian Industrial Relations Commission, the Australian Fair Pay Commission, the Workplace Authority and the Workplace Ombudsman. Its key functions will include minimum wage setting, ensuring good faith bargaining, award variation, approval of agreements, dealing with industrial action and resolution of disputes and unfair dismissal matters.

As I have already said, this bill and Fair Work Australia are the result of many months of consultation. The draft legislation was considered by an expanded committee on industrial legislation and was subject to an inquiry by the Senate Standing Committee on Education, Employment and Workplace Relations. There were public hearings across Australia involving the full gamut of stakeholders. As the Fair Work Bill continues its passage through the parliament we come ever closer to knocking the final nail into the Work Choices coffin. On that day Australian workers can be excused for celebrating—celebrating the end to a shameful chapter in our industrial relations history, celebrating closing the book on the disgrace known as Work Choices.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

Looking at the Fair Work Bill 2008 it is very clear that this government does not care about what is good or what is bad for the Australian economy. This government does not care about what is good or what is bad for jobs. This government does not care about Australian working families. This legislation is exhibit A. The Rudd Labor government has abandoned Australians who want to work and could lose their jobs as a result of this bill if it remains unamended. It has abandoned Australians prepared to take risks to employ fellow Australians in the many small, medium and larger businesses across Australia. And why? Payback. To fulfil a promise it made on the quiet to the union bureaucracy before the last election.

This bill is not about implementing a mandate to abolish Work Choices. We already agreed to that. If the government were intent on finding a sensible way of abolishing Work Choices they would have engaged with the opposition in making sure that all of the job-destroying provisions in this bill were removed, particularly where they go well beyond what Labor said they would do before the last election. This bill is about using Work Choices as a smokescreen to go well beyond what Labor ever said they would do before the last election.

In assessing this bill you have to go beyond the rhetoric and the spin and try and assess the facts. You have to go beyond the Orwellian language, as it has been described by some, that is used in this bill. Who would disagree with a statement that says the principal objective of the bill is to:

… create a national workplace relations system that is fair to working people, flexible for business and promotes productivity and economic growth.

That sounds great, but is it really what it is delivering when you look at the fine print? I would put the starting proposition that the whole way this bill has been approached by the government is a fraud. It is a fraud in two ways. One was touched on by coalition senators in their minority report on this legislation: Labor has actually embraced a significant part of Work Choices in this legislation. Do you remember the debates we had around Australia about the nationalisation of the industrial relations system? Do you remember Labor state governments and unions across Australia spending hundreds of thousands of dollars fighting the nationalisation of the industrial relations system under the Howard government’s Work Choices legislation, all the way up to the High Court? The Rudd Labor government has fully embraced that part of the legislation. The Rudd Labor government has embraced holus bolus a significant component of Work Choices. To that extent, any suggestion that under Labor Work Choices is dead is the first fraud. I bet you would not hear Labor admit on the record that they have actually embraced significant components of Work Choices.

The second fraud is that, as I touched on earlier, this legislation is not about killing Work Choices; this legislation is about using Work Choices as a smokescreen to go well beyond and do things that are going much further in a whole range of job-destroying ways, handing back powers to the union bosses well in excess of whatever was said to the Australian people before the last election.

About a month ago we were in this place and the government was trying to force us to rubber-stamp a $42 billion spending spree within less than 36 hours. The reason we were given was that we are in a period of global economic crisis, the worst since the Great Depression—to the extent that this parliament was asked to rubber-stamp within 36 hours a $42 billion spending spree. That is on one side, but on the other side when you look at the policies, whether it is the government’s proposed Carbon Pollution Reduction Scheme or whether it is this legislation, no attempt is being made to have another look at whether what is being proposed is actually sensible particularly in the current circumstances. I put forward the proposition that even in good economic times this legislation would be bad public policy if it were left unamended, but in the current economic climate and in the economic climate that will emerge in the months and years ahead this is outright recklessness. It is just incredible.

Looking at some of the detail, before the last election the minister was very clear that the right-of-entry provisions would not be changed. In fact, the minister still tells us that today, and with a straight face, the right-of-entry provisions are not being changed. She will not tire of telling the Australian people that the right-of-entry provisions will not be changed. Perhaps the minister and the government think that if they say something often enough people will actually believe it. If you say often enough that this bill is fair and you repeat it over and over perhaps one day people will actually believe that what is being proposed is fair.

Today, if you are a small or medium-sized business employing the normal mix of people found in such businesses, and you have negotiated a collective agreement with a particular union, the union that you have the agreement with is able to access union members’ records and the employer will have to provide access to that information. That is the current situation. Under the proposed Fair Work Bill many more unions could enter the workplace. Why should unions be able to force access into a workplace if the employees in that business do not want it? Why shouldn’t there be a provision where employees in a particular business are able to democratically decide whether or not they want a particular union to have access? Why should employees not have a right to privacy and have their records protected at work? I am referring to the provisions for union access to non-union-member records.

In my home state of Western Australia, Kevin Reynolds and Joe McDonald will be able to get access to employee records whether they have got members in a particular business or not. This is going back to the future. To the businesses and employers of Western Australia I say: get ready, because Kevin Reynolds and Joe McDonald are on their way; they will have access to every one of your employee records, whether they are members and have members in your workplace or not. What is that going to do for jobs? The minister stated very clearly before the election, and even in some statements since the election, that there would not be any change to union right of entry, when in fact there will be a very clear change. Heather Ridout, CEO of the Australian Industry Group—hardly known as a hard-core critic of the Rudd government—had the following to say:

The bill substantially increases union entry rights, giving each union access to a much wider range of workplaces and giving union officials access to wage records of non-union members. We believe that the existing entry rights are appropriate and should not be expanded.

The Australian Mines and Metals Association said:

Our concern in relation to the Fair Work Bill is, firstly, that the protections in relation to union access to employee information have been removed. It is not just a question of unions being able to access non-member records. Unions will be able to access any record of any employee in the business and all they have to do is put together an argument to say that that is valid in respect of an alleged breach of the act or an industrial instrument. There is no fetter on that access. There is no person in Fair Work Australia checking that the access is reasonable.

But still the minister is trying to make the Australian people believe that there has not been any change to union right of entry. It is just not true.

On the subject of compulsory arbitration where enterprise bargaining fails, again this is where the rhetoric about what Labor says it is going to do is very different from what will happen in practice. Labor says that there will not be any ‘compulsory’ arbitration because it wants people to negotiate a collective agreement. What happens if they cannot reach agreement? If there is no incentive to ensure that an agreement is going to be reached, what happens? I put it to you that there will be scenarios—you may say it will never happen, but I am suspicious—where unions will not be negotiating in good faith. What will happen? Essentially, Fair Work Australia will be able to intervene and there will be what effectively amounts to compulsory arbitration, which is something that Labor before the last election categorically ruled out.

On the subject of greenfields agreements, the whole approach is, as our leader said earlier today, to give unions the power to veto new projects. This is another one of those provisions that is anti-investment and anti-jobs.

On the subject of transmission of business arrangements, Heather Ridout, the Prime Minister’s adviser on IR, said:

The Australian Industry Group was unequivocal about the effect of the new provisions. The provisions are anti-employment and would create a huge incentive for companies not to employ workers of businesses they take over.

I have to say it again: Heather Ridout is saying that the provisions are anti-employment and would create a huge incentive for companies not to employ workers of businesses they take over. As I said in my opening, this would be bad public policy if we were in good economic times. If this was a time when we could continue to benefit from the growth and the economic prosperity experienced under the Howard/Costello years, you might be able to get away with it.

But these are different economic times. The government is telling us that these are different economic times. This would be bad public policy in good economic times; in the particular economic circumstances that we face now this is reckless. The government should stand condemned for this. I hope that, between now and when this legislation goes through the committee stages and ends up in the third reading stage, the Labor government will see the light and engage with the opposition rather than try to do another little deal in the back room with the crossbenchers. The opposition have said that on the fundamentals we will recognise your mandate. We might have differences of opinion but on the fundamentals we recognise your mandate. But there are areas where your legislation not only goes beyond what you said you would do before the last election but will cost jobs and will be bad for the economy. So it is incumbent upon you as the government to sit down with us and have a discussion on how this legislation can be improved.

But of course you are not interested in that, because you are interested in your political strategy. You want to be able to continue to point the finger at us and say that the coalition still wants to—what did somebody say?—put CPR on Work Choices to bring it back. What the coalition wants is to have the best possible policy environment in the current circumstances to ensure that we will have jobs, jobs, jobs. We want to pursue policies that will ensure jobs, jobs, jobs. It is quite obvious—and this is not us talking in isolation—that a range of the provisions in this legislation go well beyond what the government said they would do before the last election and is bad for jobs.

In fact, I put out this challenge: if the government does not sit down with us to have a sensible discussion on how this legislation could be improved then the Prime Minister and the Deputy Prime Minister and Minister for Employment and Workplace Relations should come out and give a guarantee that not one single job will be lost in Australia as a result of this legislation. If the Prime Minister and the Deputy Prime Minister and Minister for Employment and Workplace Relations do not think that it is in the national interest for us to sit down in this current climate to have a sensible discussion about a major bill like this that is going to have an impact on the economy and jobs then it is incumbent upon them to reassure the Australian people and Australian working families that not one single job will be lost as a result of this legislation. If they cannot do that, that will speak for itself.

Much has been said about the flaws in this legislation. I have just come across a comment the Treasurer of Western Australia made during the inquiry in relation to union rights of entry. He made the point:

… that union coverage amongst our private sector workforce is very low, and it is our view that you are subjugating the 86 per cent of employees who are not union members to a level of intrusion on their rights that is neither fair nor appropriate.

What a sensible statement that is. The reality is that the Deputy Prime Minister and Minister for Employment and Workplace Relations should be in violent agreement with the Treasurer of Western Australia, because she also said that there would not be any change to the union rights of entry. Of course what the Deputy Prime Minister and Minister for Employment and Workplace Relations is telling us is just rhetoric and it is not consistent with the facts or the way they are going to emerge as we move forward.

In summary, these are serious economic times. We all know that. The government does not cease to tell us. The government, in the context of the various spending sprees they have introduced through this chamber, have told us on a number of occasions that this is the worst economic crisis since the Great Depression. At times of significant economic challenge like this, legislation of this nature ought to be properly scrutinised, it ought to be sensibly considered and the government should be open minded and big enough that when clear and significant flaws have been identified—flaws that will result in fewer jobs and a negative impact on the economy—they reconsider the path they are going down. The government should have a very close look at the amendments that are being put forward by the coalition because they are going to bring significant improvements to this legislation.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

It gives me great pleasure to be able to stand in this chamber this evening and to make my contribution in the debate on the Fair Work Bill 2008 before us. The legislation has been considered by both houses of parliament under the very strong leadership of our Deputy Prime Minister. I take people back to 27 March 2006—almost three years ago this month—when we saw the introduction of one of the most radical pieces of legislation this country has seen with regard to workplace relations, industrial relations and the impact on workers in their workplace. That was the bill now known as the Workplace Relations Amendment (Work Choices) Act 2005 or Work Choices, as every single household and every single worker in this country has come to commonly call it. This was legislation that consequently diminished employees’ pay and conditions and their freedom of association. Their rights in the workplace were severely challenged under the previous government—the Howard government—by their Work Choices legislation. It was legislation relating to a policy that was not mentioned in any way in the 2004 election. When people stumped up to the polls in 2004 they had no idea that on the backburners of the National and Liberal parties Work Choices was in its embryonic form. Of course, there was no mention of it in the 2004 election, no capacity for people to either vote for or against such draconian legislation—legislation that was rammed through both houses of parliament. There was barely a four-week inquiry in the Senate at the time—if I remember correctly it was four days. There was dictation as to who the Senate would hear from—two days for the employers and two days for employee groups—and it was to be wrapped up within a week and rammed through with the numbers that the government had. It was put through both houses of parliament. If I remember correctly, the debate was guillotined and there was no notice taken of the public’s concern for such radical reforms.

I heard Malcolm Turnbull—who I think is still the current leader of the Liberal-National Party in this parliament—declare last week that Work Choices was dead. You would not think that that was the position being put by my colleagues from across the chamber tonight, all of whom have spoken against this piece of legislation but who cannot put forward alternative policies. They are too busy squabbling about who is going to be the leader in the next 24 hours. They are too busy squabbling about who might lead their party to put forward strong, constructive policies as an alternative.

In response to Work Choices, a community campaign sprang up right around this country, in every workplace, every household, every industry and every regional town, remote community and major city. People signed petitions. People wore orange T-shirts. People emailed. People conversed with one another in their workplaces. The Your Rights at Work campaign was born. The Your Rights at Work campaign was successfully kicked off by the ACTU, with local community campaigns held right across this country. It alerted people to, and educated them about, their rights at work. When the details of Work Choices became known, people did not like it. They did not like it to the point where it became an absolute millstone around the necks of the then government, which is why they are now sitting on the opposite side of this chamber. It is the biggest single explanation as to why the Howard government lost the last election. The campaign educated people on what the Work Choices changes meant to them. It encouraged people who were affected to speak out. It encouraged people to campaign and advocate for change.

We went to the 2007 Senate election with our industrial relations policy, entitled Forward with Fairness—not ‘backwards with retrovision’ as it was under the Howard government. Forward with Fairness included conditions such as protecting workers from unfair dismissals—a measure which had been removed by the former government. It meant implementing a safety net of 10 minimum standards that could not be undercut or undermined by employers. It gave employees the freedom and the right to become a member of a union if they so chose. It established Fair Work Australia, an independent umpire, to maintain fairness in the workplace and set fair minimum wages and conditions. It allowed awards to set employment conditions such as wages, penalty rates, allowances and superannuation, to name but a few. It reinstated those entitlements and workers’ rights that had been stripped from workplaces under Work Choices.

We released our Forward with Fairness policy in April 2007, so our policy and our plan have been out there for nearly two years. This was followed up with an implementation plan in August of the same year, allowing voters plenty of time to consider the detail prior to the last election. Industrial relations was one of the biggest policies debated at the last federal election. It was one of the biggest agenda items, first and foremost in people’s minds when they stepped up to the ballot box on election day. It was certainly a decider for voters. On 24 November 2007 they made their decision overwhelmingly and voted for Labor, forward with fairness into government.

In my own home town of Darwin, the former member for Solomon, David Tollner, bragged and boasted that his fingerprints were all over Work Choices. Luckily the voters in Solomon do not have to put up with that dirty work and those fingerprints anymore. They have been wiped clean now with the election of Damian Hale. I put it to you that David Tollner was one casualty of that bad policy that had such bad implications for people in the workplace. They did not like it and they chose to show the former government in no uncertain terms exactly what they thought about it.

The bill currently before us delivers on our election promise to rid Australia of Work Choices and replace it with a fair and balanced workplace relations system. ‘Fair and balanced’ are the key objectives and the essence of the Fair Work Bill. What were not fair and balanced were the provisions under Work Choices. This bill clearly reverses that agenda in workplaces. This is a system for workplace relations reform that will promote national economic prosperity and social inclusion for all Australians and all workers. It builds on the Workplace Relations Amendment (Transition to Forward with Fairness) Act, which came into force in March 2008. That act ended forever Australian workplace agreements. It ended forever the agenda that emanated from the HR Nicholls Society many years ago to ensure that workers were not protected by awards or collective agreements in their workplaces but in fact were the subject of individual contracts and agreements. So the end of AWAs occurred in March last year. The forward with fairness act introduced a no disadvantage test for agreements and began the process of award modernisation.

The Fair Work Bill clearly provides a balanced framework of workplace rights and obligations that is fair to employers and employees—something that Work Choices never achieved. The bill is at least 600 pages long. It is just under half the size of the Work Choices legislation. It is much easier to understand and easier to navigate in terms of its structure, its organisation and its expression.

Debate (on motion by Senator Sherry) adjourned.