Senate debates

Wednesday, 11 March 2009

Fair Work Bill 2008

Second Reading

Debate resumed from 10 March, on motion by Senator Ludwig:

That this bill be now read a second time.

upon which Senator Hanson-Young moved by way of an amendment:

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”.

9:32 am

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

I rise this morning to continue my contribution in this chamber on the Fair Work Bill 2008. This bill is of course based on the corporations power, not the conciliation and arbitration power as was previous industrial relations legislation in this country. This means that the new workplace relations system will cover all employees of employers who are trading corporations. Awards will no longer be the result of the arbitration of interstate industrial disputes but common rules for industries or occupations. Also, unions will not have to apply to vary every award each year for a national wage case.

I now turn to some of the main issues that I have heard my colleagues opposite raise. Perhaps two most significant areas were raised during the hearings of the Senate Employment, Workplace Relations and Education Legislation Committee. Bear in mind that, out of all of the chapters of the legislation and all of the changes that are proposed under this system, it is interesting that the opposition chose to home in on the right of entry and access to records. Let me address those two areas. The Work Choices legislation clearly marginalised unions—there is no doubt about that—and it clearly alienated workers in the workplace who wanted to or would have liked to join a union. Work Choices clearly impinged on the employee’s freedom of association rights, but the Fair Work Bill enshrines in law what was allowed before Work Choices came into force, though with strict rules regulating it. It gives right of entry for unions to hold discussions with members and potential members, and this cannot be removed by a non-union agreement. There is no such concept as a union or a non-union agreement under the Fair Work Bill. It states that employers must respect an employee’s right to be represented and enhances protections for freedom of association. It ensures that rooms for meetings during workplace visits must be fit for purpose and not be intended to intimidate and discourage attendance.

My office received complaints regarding a workplace in the seat of Solomon, where a trade union official visiting a workplace in Palmerston was invited to sit in what was no more than the cleaner’s closet in order to try and meet with trade union members. Under this bill that will not occur. A submission to the Senate inquiry into the Fair Work Bill by the Textile, Clothing and Footwear Union of Australia detailed an instance where a union organiser was directed to meet workers in the female toilets area, forcing the organiser to stand in the doorway of the toilets in order to have access to female workers at that workplace. This legislation will ensure that ridiculous and inhumane situations such as those experienced by trade union organisers, delegates and their members around this country do not happen again.

The right of entry provisions in the bill were a point of contention. As I said, that was brought up by employers during our Senate hearings. We heard that some employers see union involvement in the workplace as potentially destructive, either by unions competing with one another for potential members or simply by unions being able to enter the workplace. The committee majority believes, and I agree, that this concern is unfounded. There is no evidence, and there was no evidence provided, to show that that is the case. In fact, we had evidence to the contrary. Section 480 of the bill states:

… establish a framework for officials of organisations to enter premises that balances:

(a)
the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i)
this Act and fair work instruments …

It also balances:

(b)
the right of employees to receive, at work, information and representation from officials of organisations; and
(c)
the right of occupiers of premises and employers to go about their business without undue inconvenience.

This bill does that; it balances the rights of the trade union organisation, the rights of the employee in a workplace to seek to be represented by that trade union and the rights of the employer—quite legitimately so—to not have their business interrupted during the day or during the evening for that matter. Throughout the committee hearing process, we did not hear any substantial evidence to the contrary. In the first instance, there are strict compliance rules that unions must follow if they wish to enter a workplace. The legislation specifically states the entry rules that unions must comply with. These rules include that, if a union wants to enter the workplace, the individual must be a valid permit holder, must provide the employer with at least 24 hours notice and must comply with the conditions on entry. The bill protects and puts in place what Work Choices did away with: an organisation’s right to represent its members in their workplace, an employee’s right to be represented by their union and the employer’s right to be able to continue to conduct their business without interruption.

It is no secret that the former government sought to eradicate unions from the workplace. It is not a line that is popularly swallowed by the majority of people out there. A lot of people may not choose to join a union, but a lot of people certainly respect and appreciate the work that trade unions do. Work Choices proved, though, that the clear intention and main aim of one of those bills was to diminish the effectiveness of trade unions representing their members. Work Choices thoroughly restricted union entry and inspection rights, with the aim of preventing unions from accessing and helping their members in the workplace. It even removed an employee’s right to meet with their union in their workplace if they were covered by an AWA or a non-union agreement. The Australian Council of Trade Unions point out in their submission to the Senate committee:

The right of workers to have access to their representatives is recognised by the International Labour Organisation (ILO) as an integral element of the right of workers to freedom of association and collective bargaining.

The right-of-entry provision in this bill ensures that this right is protected. Unions have a proven history of helping their members ensure that their rights and entitlements are protected. In order to achieve this, unions must have access to their members in their workplace, and this bill will guarantee that.

I will now just touch on access to records, another area that was raised during the Senate’s hearings. The committee heard from employers voicing concerns that allowing unions access to employee records would breach the privacy of non-union members or of the members themselves. There is the view among some employers that, under this legislation, unions are given free reign access to employee records and that that is open to abuse. That view is, in fact, incorrect. If you read the legislation, you will see that there are very strict rules that unions must comply with when accessing employee records. With regard to the second concern, I quote the committee majority report:

The committee heard of no instance—

absolutely no instance; on the committee hearing days that I attended, when I asked employers to provide me with examples of where access to employees’ records had been abused, nobody could provide me with examples of that—

of misuse or abuse of employee records …

No allegations were put before us. The majority report goes on to say:

The committee majority also notes that the protections for personal information are stronger and more comprehensive under the Fair Work Bill than under WorkChoices and there are also heavier penalties for the unauthorised use or disclosure of employee records.

During the Senate committee hearing on the 27 January, I asked an advocate from the Queensland Council of Unions if, to their knowledge, there had been a misuse of records obtained by trade union officials in Queensland. The response from Ms Deborah Ralston was this:

No, and what is important to bear in mind, as I indicated earlier, is that in the Queensland context authorised officers are not subject to a fit and proper person test. Yet the authorised officers that operate within the Queensland environment indirectly apply such a test because they adhere to very high standards in relation to the rights and responsibilities they have in accessing a work site.

I then asked again:

So you are not aware of any allegation or case or proceedings or complaints whereby a person has misused employee information?

I asked if anybody was aware of any allegation, case, proceeding or complaint whereby a person had misused employee information, and the answer was no. Union access to employee records was in place prior to Work Choices; the government has simply protected this in legislation and, in fact, gone further. This government has put in place strict rules that unions must follow if they wish to access employee records.

The Fair Work Bill before us today balances the needs of employers, employees and unions. This bill will ensure that Australia is competitive and prosperous without compromising workplace rights and guaranteed minimum standards. It will ensure that employees’ freedom of association in the workplace is protected. But it will also ensure that employers and employees have access to transparent, clear and simple information about their rights and responsibilities. On that basis, I commend this bill to the Senate.

9:43 am

Photo of Sue BoyceSue Boyce (Queensland, Liberal Party) Share this | | Hansard source

I also would like to make some comments on the so-called Fair Work Bill 2008. I can stand here and insist that Senator Farrell, for instance, is the Chesty Bond of the Senate. I can stand here and insist that I am the Nicole Kidman of the Senate. But simply saying it does not make it so. The Fair Work Bill is not about fairness. The Fair Work Bill is not fair. It does not matter how many government members say that it is; saying it does not make it so. Saying it is fair does not make it fair. Amending the bill can make it less unfair, but that is all. In fact, in the form that the government said that the bill absolutely had to be passed—that is, the Fair Work Bill mark I—it was about reintroducing the very worst of adversarial industrial relations to Australia and to Australian workplaces.

Now the demure Deputy Prime Minister is saying—though just saying it does not make it true—that she will accept some amendments to the Fair Work Bill. Of course, she has not yet provided the amendments that she is intending so that they can be scrutinised or checked for unintended consequences. She would just like a blanket approval. We in the coalition, however, are very happy to spell out the amendments that we believe would assist in improving the fairness of the so-called Fair Work Bill. We are seeking amendments to the clauses relating to union access to non-union member records, the expanded right of unions to enter workplaces, compulsory arbitration provisions when enterprise bargaining fails, the right of multitudinous unions to participate in greenfields agreements, and the transition of business provisions and the unfair dismissal provisions that are included in the bill. If our amendments are accepted, some of the more combative, adversarial aspects of the bill will have been removed. Then and only then will the bill begin to approach fair.

Just as pathetic as the word games that the government has been trying to play with the word ‘fair’ have been the attempts of the demure Deputy Prime Minister to play mind games with the word ‘mandate’. Every time the government says mandate, the coalition is supposed to throw up its hands in defeat and accept the bill as though it were holy writ. Even the amendments to the supposedly unchangeable holy writ are supposed to be accepted holus-bolus, without examination, without any forethought. As Senator Humphries so ably explained yesterday, that was not the attitude that the Labor Party adopted to ‘mandate’ when they were in opposition. Back then, the Labor Party had a bit of a ‘mandate, schmandate’ attitude. They had not yet discovered their reverence for mandates. The Howard government had a mandate for the sale of Telstra, for the introduction of the GST and for the introduction of our unfair dismissal legislation more than once. I am afraid I have to say that back then the Labor Party did not revere the mandate; in fact, they opposed our mandated legislation at every turn. Whenever they could, they even—shocking as this may now seem to the current government members—delayed and blocked legislation that was there because of a mandate.

Could the government please stop playing silly games with this legislation? In any economic climate, the consequences of this dramatic change to the workplace relations landscape would be serious. We have stories in the press today of restaurants that are unlikely to succeed because of the changes that are proposed and of many other small businesses that are likely to fail in the coming months, when we already have enough potential failure around us. Right now, with rising levels of unemployment and increasing numbers of company failures, it is irresponsible and disgusting that the government wants to continue to play games around this legislation. There is no doubt whatsoever that this legislation can be improved, that the Fair Work Bill can do a much better job of approaching fairness. I attended a number of the Senate committee hearings into the bill as a participating member. The evidence of dozens of witnesses was that the bill could be improved, that the bill could be less lopsided and less adversarial. For Australia’s sake, let us make it better.

When the ALP took office, the budget was $19.7 billion in surplus, the government had no debt and held net assets of $42.9 billion. Importantly, the economy of Australia was experiencing its 17th year of growth. Gross domestic product was growing at just under four per cent per annum. After just 15 months of the Rudd government, we had had our first quarter of negative growth in 17 years. Economists across Australia are already claiming that we are in recession, yet we have had no recognition from the Minister for Employment and Workplace Relations that Australian employers and Australian workers are even facing difficulty. Newsflash to the government: if you make workplace relations just another red taped jackboot that you can kick small business with, in the current circumstances a lot of those employers will simply stop employing. They will themselves join the growing queues of the unemployed.

As an indication of what may be to come, we have the ANZ job data for February, which came out yesterday. The data provides proof that job advertisements in newspapers and on the internet fell by 10 per cent in February when compared to January, which is generally one of the slower months. They are down by almost 40 per cent when compared to February 2008. This is the biggest drop in advertisements in the history of the ANZ job advertising survey. It seems that many employers will lay off workers that they currently have. It does not matter how much so-called fairness the government tries to pile onto employers; the bald fact is that, if you make sacking staff too difficult, companies will simply shut up shop.

The latest Dun and Bradstreet National Business Expectations Survey, which came out today, shows that 27 per cent of firms said they plan to cut back staff in the June quarter this year. What is this government doing to assist those people other than putting up wages and creating conditions that make it impossible for employment to continue? The Dun and Bradstreet survey reports that businesses are being prepared for worse times ahead. Clearly, many businesses are looking at the actions of the government and showing no confidence whatsoever that they will be able to employ workers or even retain current workers. In this climate, in the midst of this uncertainty, the government has chosen not to approach this bill with goodwill or with an attitude of negotiating the best outcome. It has stuck resolutely to its election promises—in fact, it has gone past its election promises, stressing its mandate. It has gone much further than the policies that were outlined in Forward with Fairness.

Other coalition senators yesterday did an outstanding job of spelling out the amendments that we seek and why it is in Australia’s best interests that they be accepted, so I would like to spend a little bit of time looking at the so-called unfair dismissal provisions in this so-called Fair Work Bill. The bill would give businesses with fewer than 15 staff a 12-month exemption from meeting the government’s dismissal code when they dismiss a staff member. The Senate hearings that I attended heard evidence that these changes to the unfair dismissal provisions would be a serious disincentive to employment and almost impossible to implement in industries where labour demand is prone to fluctuate or is seasonal. In fact, even the unions had concerns about the unfair dismissal provisions.

Firstly, the figure of 15 staff includes all workers; it is a head count. It is not just the number of full-time equivalent workers. So you have the crazy situation where a busy sandwich bar with just two full-time staff, for example, would not fit the exemption criteria if they employed 13 part-timers—a very common experience in small businesses which have peak times of busyness and otherwise. The Local Government Association of Queensland noted that our workplace relations system should not discourage employers from increasing their workforce beyond 15 for fear of attracting unfair dismissal claims. Many, many business groups raised concerns about this definition and all manner of suggestions were made, from the very basic suggestion that the number of 15 should at least apply to full-time equivalent staff right through to the idea that the current figure of 100 should be retained.

Let’s look at why we have those figures. Where on earth did they come from? What are we trying to achieve with this? The exemption from unfair dismissal for small business was meant to recognise the fact that many smaller businesses simply did not have the resources to check legislation, to see that they had it right, to understand the regulations and to work their way carefully through the provisions—and often this required legal advice. It was meant to be a recognition that without those resources small businesses in particular were fearful of taking on extra staff. Evidence has suggested that the relaxation of the unfair dismissal laws to incorporate the concerns of small business led to an increase of about 7,000 jobs per year—7,000 people became full-time workers when in other circumstances the small business operators may have decided to just work longer hours themselves and not expand their businesses as quickly as they might have. I thought the idea of exempting small business was about accepting that small business simply does not have the same resources as big business.

The question then becomes: when does a company begin to reach critical mass and have the resources to be confident that they understand the regulations and that they understand how to meet them? We are not talking about employers who are sacking for the hell of it. Certainly during the times of high employment that we had under the Howard government no employer in their right mind sacked someone for the hell of it, because they knew how difficult it would be to replace them.

Our definitions of small, medium and large business are certainly something of a mishmash at the moment. The Bureau of Statistics defines a small business as one with fewer than 20 full-time equivalent employees. That is a start, but what the hell has it got to do with the figure of 15? Absolutely nothing. Where the number 15 was plucked from is still something of a mystery if the objective of this is to assist small business. We need to define small business. By international standards, the figure of 20 in our definition of small business is very, very low. The World Bank, the OECD, the European Union and even the ACTU’s favourite organisation, the ILO—which is hardly a bastion of neoliberalism—define a small business as one with fewer than 50 full-time equivalent employees and an annual turnover of less than about A$20 million.

The coalition leader, Mr Turnbull, has said we will work with the non-government senators—and with the government if they can wake up and pay attention—to arrive at the best possible result for Australian small business in this legislation. I would personally like to encourage the use of the overseas definition of a small business—that is, one with fewer than 50 full-time equivalent employees and a turnover of less than $20 million—not just because it would be good for international consistency but because it would be good for Australia and for the creation of Australian jobs, which is what one hopes this parliament is all about.

I note that the Deputy Prime Minister this morning claimed that she was not prepared to negotiate on the head count of 15 for exemption from the unfair dismissal laws. You have to ask why—what is she trying to achieve? Is the true agenda here simply to make the number as low as possible so that as many people as possible are caught by this net? It is certainly not about trying to assist small business to go about doing its job of employing Australians in the particularly difficult economic situation we are in. At a time of economic crisis such as we are experiencing, this government should be doing everything to protect the jobs and livelihoods of Australian workers. If the Senate passes the bill in its current state, any job lost as a result of the new system will not be ‘fair’; it will be a dark stain on the hands of this government. Any employer who decides that the transaction costs of employing have risen so dramatically that he or she cannot afford to engage new employees and thereby add to the productivity of the economy can rightly lay the blame for that inability at the door of this government. We urge the government to consider our amendments and to negotiate fairly for a fair outcome on a bill that currently is certainly not fair.

10:00 am

Photo of Scott RyanScott Ryan (Victoria, Liberal Party) Share this | | Hansard source

Like Senator Boyce I had the opportunity to participate in the committee hearings examining the Fair Work Bill 2008. I went to almost all of the hearings around the country, and it became particularly apparent that this bill represents nothing less than an attack on jobs. Senator Boyce referred to how employers in recent times would be out of their mind to remove employees, because it was actually hard to find replacements. Sadly, it appears that under this Labor government that is not the same problem that it once was. This Orwellian-titled Fair Work Bill should actually be called the ‘ACTU Thank You Bill’ or the ‘Union Return-the-Favour Bill’ because what this bill represents is an attempt to use the force of law to breathe life into a movement that is dying of irrelevance, with roughly one in six private sector workers being a member of a trade union. This represents an attempt by the ALP to put their paymasters back in the box seat and to effectively coerce members of the Australian workforce into once again being supporters of the trade union movement. Importantly, as Senator Boyce and other speakers on this side have outlined, the bill does not enact what Labor promised before the election. That is clear. It goes a lot further. I will mention a few of those examples this morning.

Firstly, with respect to right of entry, this bill goes substantially further than was promised by the Labor Party before the last election. As has been outlined in the committee report, in a speech delivered in April 2008 the minister stated:

… 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.

And another example:

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.

What happened in the committee hearing is that the department itself conceded:

The bill removes the existing requirement for a union to be bound to an award or agreement applying in the workplace as a condition of entry.

That is a substantial change from the law as it existed several years ago. When it comes to accessing employees’ records, the coalition firmly believes that those records should only be accessed, as we outlined yesterday, if they relate to members of unions or people who give their permission or where a tribunal orders such access. It should not be as of right for a trade union. The bottom line here is that, if the Commonwealth Bank cannot get access to those records, why on earth should the CFMEU be able to? That is a major inconsistency in this bill and it is a substantial change from previous law.

Secondly, we have transmission of business. Hidden away in the back of this bill and retitled ‘Transfer of business’ this represents a fundamental change to settled law that has over decades gone right to the High Court of Australia. It represents an attack on the settled law to the extent that we heard evidence that it will directly cost jobs. It changes what was an asset test and a test based on business character to a transfer of work. We heard from the Australian Industry Group unequivocally that the provisions are anti-employment and would create a huge incentive for companies not to employ workers of businesses they take over. I cannot think of a worse measure to introduce in the current economic environment than to actually provide a disincentive for companies to take on employees of businesses that are taken over or that otherwise change hands through contracting arrangements. For the party that talks about the need for an independent umpire: there is an independent umpire in the High Court of Australia. It has settled this law over and over again. In essence, what this bill does, when the unions have not been able to get their case up through the courts and tribunals of Australia, is say, ‘We’ll change the rules.’ For the party that talks about an independent umpire, that represents a spit in its face. What it does is say, ‘We are just going to change what the umpire said.’

Thirdly, we have compulsory arbitration. We heard that there would be no compulsory arbitration. It was not vague; it was explicit. We were told that people would not be forced to sign or adopt agreements to which they did not concede. This bill does not do that. This bill allows Fair Work Australia to make orders to force people into agreements that they otherwise do not concede to, and that represents a retrograde step. Through that provision and others this bill will cost jobs.

We hear much confected, contrived outrage from the Prime Minister and the government, but it is nothing more than spin. We hear more about the previous government’s policies than we do about the detail and impact of their own—they do not want to discuss them, they do not want to defend them and they do not want to be held to them. The coalition will do just that. Unlike our opponents, we will not stand in the way of the electorate—and that has been made clear—but we will hold the government to account and we will hold them to that which they promised in their policy.

The ultimate test of this legislation is: does it create jobs? Does it support job creation? While the previous government oversaw the creation of two million jobs, this government will oversee job destruction—as we heard in evidence to the committee. Quite frankly, that is consistent with the history of the labour movement in this country, who have never cared about unemployed people. Over many years they have sought to hold conditions at the expense of jobs. I recall an example from my youth, when the then Secretary of the Victorian Trades Hall Council went to the Shepparton Preserving Company in the last recession that Labor oversaw in this country—which hit particularly hard in my home state of Victoria. Rather than allow the workers at SPC, as it was, to voluntarily alter their conditions, in came the Victorian Trades Hall Council. With state government support, it actually prohibited them from changing their working conditions to keep their jobs through what was then the worst recession since World War II. That shows the intent of the labour movement, and that is actually reflected in this bill.

Senator Farrell last night specifically spoke about trolley collectors and how the SDA had apparently saved trolley collectors, which I found interesting. I was once a trolley boy. I spent several years at high school and university as a trolley boy, and when I was not a trolley boy I was a freezer boy at the local Safeway or independent supermarket. Do you know what the SDA did for me? The SDA ensured, because it did not like youth wages, that when one turns 21 one had to graduate to adult wages. The SDA made sure that everyone lost their job when they reached 21. The day I turned 21, up went my pay rate and the supermarkets all said, ‘Thank you very much.’ I was only a casual. All the SDA represented was a notice board in the tea room or lunch room of a supermarket. I never saw nor heard from them. When I turned 21, I lost my job. I lost my job because of the unions not allowing flexibility in the workplace. I had no say in that; I had to go and find something else. Maybe some 15- or 16-year-old kid got the job. But how on earth is that job growth? That does not represent job growth. That goes to show what the labour movement has been about: protecting conditions of existing employed people at the expense of those who have no job. And that is exactly what is being undertaken in this bill.

This government says one thing and does another. It says that this bill represents a forward step. The department admitted in the first committee hearing here in Canberra a fact that was very interesting. This bill removes a right of employers that was granted by the Laurie Brereton act of 1993. In 1993, both unions and employers were given the right to take protected industrial action. Under this bill, the right of employers to do so is limited. It is limited so it can only be done in a reactive sense. This bill does not just take us back beyond the Workplace Relations Act 1996; it takes us back beyond 1993. That is another example of how, despite the government using the word ‘fair’ over and over again, as currently constructed the bill is simply not fair.

The bill uses award modernisation as the excuse to govern the union right of entry rules. The unions get to define when they are eligible to go into a workplace. One day, you could have the AWU knocking on the door; the next day, you could have the AMWU; and on a really bad week you might get the CFMEU. The unions can change their own rules to determine which workplaces they cover. That is a not a recipe for industrial peace, that is not a recipe for cooperation in the workplace and it is not a recipe for jobs.

This morning when I was preparing my speech, my attention was brought to the Forward with Fairness document, dated April 2007. The interesting thing is that if one searches through this document, apart from a very obscure reference to trying to promote economic growth and the future economic prosperity of our nation, there is nothing about promoting jobs. There is no promise here that this will deliver economic growth and 10, 20 or 50 thousand jobs—or maybe even two million jobs, like the previous government did. There is nothing in here about a test that will define the success of this policy by whether people keep or get jobs. That goes to show just how far removed from economic reality this government is. It simply does not understand that in changing economic circumstances, whether they are good or not so good, having flexible employment arrangements and ensuring workplace cooperation is the best way to ensure employment growth. It was not a Liberal, I believe, who said that fairness starts with a job; I think that was former British Labour Prime Minister Tony Blair. This policy fails that most basic test.

We often hear from people a sentiment, with which I disagree, about our horse and buggy Constitution. This is a horse and buggy industrial relations policy. It is a throwback. As we have seen, it goes back beyond the 1996 Workplace Relations Act in so many ways, which the government will not admit. It goes back even beyond the Laurie Brereton Industrial Relations Reform Act 1993. The Australian people will not fall for the sort of Peter Mandelson-New Labour inspired spin and newspeak of this government. Just by putting ‘fair’ in front of something does not make it so. It will not work. This bill represents overreach from this government. The scoreboard of jobs growth will be the test against which it fails. Taking a modern application of George Orwell, this government’s slogan might well be that unemployment means jobs, unfair is fair and some workers—some jobs—are more equal than others.

The amendments that the coalition will move to the provisions of this bill will strengthen its ability to support jobs growth. The test for this place has to be: are we putting anyone out of work? If there is a single provision in this bill that will cost someone in Australia their job, that will affect a family. They could lose their home. That is something which we should eternally oppose.

10:07 am

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | | Hansard source

There are no further speakers. I rise to sum up on the Fair Work Bill 2008. If a democracy is to mean anything, this debate on the Fair Work Bill 2008 can only be judged by how it answers this basic question: will the Senate respect the overwhelming call of the Australian people given to this parliament in November 2007? The Australian people voted for the balanced workplace relations policy set out clearly in the Forward with Fairness document. This bill delivers on each and every commitment in that policy. The bill finally removes the extreme Work Choices laws that were overwhelmingly rejected by the Australian people.

The bill creates a fair and simple workplace relations system that strikes the right balance between employers and employees. The bill will bring our workplace relations system back to the centre, where Australians clearly want it to be. Consistent with the government’s commitment to cooperative workplace relations, a thorough consultation process was undertaken to assist the government in developing the bill. This included providing the committee on industrial relations—comprising unions, employers and government representatives—a thorough opportunity to examine the draft bill in detail. The government considered all feedback received as a result of these extensive processes in the course of developing the Fair Work Bill.

The final stage of the consultation process for this legislation was the recently concluded Senate Standing Committee on Education, Employment and Workplace Relations inquiry. The government welcomes and supports the Senate inquiry process, which both complemented and completed the extensive consultations conducted in the development of the new laws. The government has carefully considered the Senate inquiry committee report, as well as each of the 154 detailed submissions to the committee’s inquiry.

The government has consistently indicated its willingness to consider technical amendments that are consistent with the policy that would improve the operations of the Fair Work Bill. As senators are aware, the government has recently announced its intention to make a number of technical amendments to that bill that improve the operation of the new system. The government’s amendments will improve the operation of the new system by removing uncertainty and unintended consequences while ensuring consistency with the policy mandate given to the government to implement Forward with Fairness.

However, let me state this very clearly: we are committed to implementing the Forward with Fairness policy, which was approved by the Australian people at the last election. We are not prepared to bargain away the will of the Australian people. No one stakeholder group—employer or employee—will be 100 per cent satisfied with every provision in the bill, but the government’s aim from the beginning has been to get the balance right on workplace relations. We need a stable, balanced and truly national system to meet the needs of the country in the decades to come.

I will now turn to the debate that was had over the past two days. Senators have debated the bill, obviously vigorously, and, while there has been much debate of a rhetorical nature, a few matters of concern have been identified. However, some of the claims made in the debate are quite frankly without substance or are plainly misleading and I cannot let them stand unchallenged on the public record.

One of those claims—we will call it claim 1—is that the Fair Work Bill will increase unemployment. I will first respond to claims that the Fair Work Bill will endanger job creation. There are a variety of factors that affect employment levels in our economy, but what the government is saying very clearly is that we are not immune from the global financial crisis and everything we have done has been intended to keep this nation in front and to protect jobs. But one of the things we also need to do is ensure that we do not leave employers and employees in 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 what this bill does.

Employees need to have confidence that their pay and conditions are secure, and this bill guarantees just that. The Fair Work Bill sets out a fair and balanced system that is designed to meet the country’s needs both in the good and the bad times. Businesses and employees need a fair and effective enterprise bargaining system and the support of Fair Work Australia to help them negotiate creative and flexible arrangements that can help business through the difficult times ahead so that the employees can keep their jobs. During these difficult times Australian families need to know that their basic workplace rights are secure and certain. They need the security and protection against unfair dismissal, they need a fair safety net of basic wages and employment conditions that cannot be stripped away and, if the worst happens, they need redundancy pay to tide them over. The government does not believe that providing a fair safety net for employees with basic minimum standards like redundancy pay, public holidays, rest breaks and penalty rates for weekend work will result in increased unemployment. Employers make decisions to hire employees based on a range of reasons related to the needs of sustaining and growing their businesses. This will not change under the new system.

Turning now to claim 2, which is that unfair dismissal laws cost jobs. The employment related concerns about providing proper protection against unfair dismissals are not supported by the empirical research in this area. For example, the OECD has found that there is no clear link between stricter employment protection legislation, including unfair dismissals, and employment.

We make the shape of our new unfair dismissal system crystal clear in Forward with Fairness and we believe that it strikes the right balance between providing an avenue for unfair dismissal claims and certainty to business on potential claims arising from dismissal. Requiring employees, before being able to claim unfair dismissal, to serve the minimum qualifying period of six months for large businesses and a full 12 months for small businesses balances the right of employees to have protection from unfair dismissal with the need for employers to have an adequate opportunity to determine whether or not an employee is suited to their job and to the employer’s business. Additional special arrangements will apply for small businesses, including the Small Business Fair Dismissal Code. Small business employers will be fully supported under the Fair Work Bill to make reasonable and fair decisions in managing their employees. And we make it clear in Forward with Fairness that the small business arrangements will apply to businesses with fewer than 15 employees. Senators should note that Forward with Fairness did not define a small business as 20, 25 or 50 employees. Under the Fair Work Bill good employees who have proved themselves under a full six or 12 months of service will have the right to challenge a dismissal that is harsh, unjust or unreasonable.

Looking now at claim 3, which concerns the Fair Work Bill and compulsory arbitration. Compulsory arbitration is not a feature of the new system—far from it. The focus of the new system is to encourage employees and employers to bargain in good faith and reach agreement voluntarily. This is the way that most bargaining takes place, quite frankly. Employers and unions must bargain in good faith and this means that they must meet, exchange positions and refrain from capricious or unfair conduct. But good faith bargaining does not require either side to make concessions or to make an agreement. The new system is not about delivering access to arbitration at any time that parties get into a disagreement during the bargaining process—far from it. Parties can take a tough stance in negotiations.

Workplace determinations can only be made in limited and clearly defined circumstances: for example, when industrial action is causing significant harm to the national economy or threatening the health and safety of the community; or where a protracted dispute is causing significant economic harm to the bargaining participants; or in the low-paid bargaining stream, subject to very strict criteria; or where a party has engaged in serious and sustained breaches of good faith bargaining requirements and is, quite frankly, flouting the law.

We know that numerous studies show that collective agreement making is good for business and good for employees. Bargaining allows employers and employees to examine ways to improve productivity and efficiency and make workplaces more flexible. This encourages growth in real wages and living standards through bargaining underpinned by real labour productivity growth, which of course helps to control inflation. Work Choices coincides with a poor productivity performance. Annual productivity growth averaged only 1.2 per cent between March 2006 and September 2007, compared with the annual average over the previous two decades of 2.3 per cent. This bill delivers to the Australian people what we promised them: fair bargaining and a productive workforce.

Another claim made during the debate on this bill was that low-pay bargaining will drive up costs for employers. We will keep tabs on that, claim 4. There is a clear commitment in Forward with Fairness to help low-paid employees and their employers to gain access to enterprise bargaining and the benefits it brings. We want to allow as many Australian employees and employers as possible to receive the benefits of enterprise bargaining. We know that there are people who have been left behind in sectors like cleaning, community work and security. Fair Work Australia will be able to convene conferences, help identify productivity improvements to underpin an agreement and generally guide parties through the negotiating process. This process is not about building another safety net on top of the modern award safety net; it is about helping those employers and employees who we know have had difficulty getting into a bargaining culture to generally make enterprise agreements. Agreements in this stream will be the subject of genuine negotiation and exchange, where a wage increase is given in exchange for changes in work practices that deliver productivity or improved service delivery. When bargaining fails and agreement cannot be reached for a particular employer or employers, then Fair Work Australia, in very limited circumstances, can make a workplace determination to resolve the issues in bargaining. But, in doing so, Fair Work Australia must give consideration to issues of workplace productivity and the competitive position of the employer. This framework delivers on our election commitment and, quite frankly, could only be opposed by those who are not at all distressed by the circumstances of the low paid in our community.

I will turn to another claim that has been made during the debate: the bill gives unions excessive rights in bargaining. We are now up to claim 5. Forward with Fairness outlined that we would fully respect the rights of employees to join and be represented by a union or not to do so—as they wish, quite frankly. We are implementing our policy to the letter. There are no longer union or non-union agreements. All agreements will be made directly with employees. Where 50 per cent of employees approve an agreement, the agreement is made even where a union representing some of the employees may have urged a vote against it. Employees can, of course, be represented in the bargaining process by their union or by any other person they nominate.

Another claim made in the debate: the bill opens up a union right of entry to workplaces. That is claim 6. The government outlined our right of entry commitments in detail in the Forward with Fairness policy implementation plan. We promised that our right of entry laws would strike a balance between the right of employees to be represented by their union and the right of employers to run their business. Forward with Fairness set out in considerable detail that the bill would, first, ensure that only fit and proper persons hold a right of entry permit and that permit holders understand the right to enter premises comes with significant responsibilities. We are doing just this. Second, it would ensure that there are appropriate arrangements in place to enable duly authorised permit holders to meet with those workers who are eligible and who want to meet with them. We are doing this. Third, it would allow union officials who have a right of entry permit from the Australian Industrial Registry to visit employees in three circumstances: to investigate breaches of industrial laws, awards or agreements, to hold discussions with employees who are members or are eligible to be members of the union or to investigate breaches of occupational health and safety law. The bill does all of this. On any reasonable examination, arguments that the bill does not comply with our election policy are plainly false. We make no apology for respecting the fundamental right of employees to join and be represented by a union. This means having access to advice and information from a union. No-one can be made to join the union; no-one can be made to attend a meeting. Our right of entry policy was detailed and is being implemented, and it is a policy that is essential to meet the most basic principles of freedom of association. Employees are entitled to join and be represented by their union.

Another claim, claim 7, was about inspection of nonmembers’ employment records. A significant amount of debate has occurred on the question of whether a union permit holder should be permitted to inspect employment records relating to nonmembers. Much of the debate was ill-informed and inaccurate and requires correction. Laws that ensure compliance with awards and agreements are important both for employees and for the vast majority of employers who comply with the law. Employees should not be underpaid, and employers doing the right thing by their workers should not be undercut by competitors who are not. Unions have a longstanding role, going back many decades, in ensuring compliance with awards and agreements—and this is provided for even under Work Choices. Subject to strict requirements, union permit holders are currently entitled to enter work premises in order to investigate suspected breaches of awards and agreements and to take recovery action to ensure employees receive their correct entitlements. To carry out this compliance role, unions must be able to examine relevant workplace records.

We have heard in the Senate today and yesterday wild and, quite frankly, hysterical prophecies of union officials dancing through bedrooms with photocopiers under their arms or jumping out of people’s cornflakes. Claims have been made that a union permit holder can look at every employee’s pay records, from the managing director down, to satisfy some intellectual curiosity. Let us take a reality check here. Of course under the Fair Work Bill a right to investigate breaches of the law should come with strict responsibilities, and it does. The bill retains the right of entry permit system, and strict obligations apply concerning the giving of notice to the employer and the permit holder’s conduct while on the premises.

The bill also strengthens the existing provisions by introducing for the first time the application of the Privacy Act regime to the handling of documents and information obtained under the provisions and by introducing new penalty provisions for any misuse of records. The Office of the Privacy Commissioner made a submission to the Senate committee suggesting some amendments to the bill to improve its operation. The Deputy Prime Minister has foreshadowed that the government will move amendments that fully address the issue raised by the Privacy Commissioner on how the operation of the provisions can be best improved. The amendments will include a new broad antidisclosure penalty provision which will impose heavier penalties if any information obtained in the course of right of entry is misused. Amendments will also make it clear that the right of entry for the purpose of holding discussions may only be exercised for the purpose of talking to employees and not independent contractors.

In order to correct the record I will now clearly set out the operations of provisions of the bill concerning the inspection of documents and what a union permit holder can actually do and not do under the bill. First, to enter premises the permit holder must reasonably suspect that a contravention of an award agreement or the act is occurring or has occurred and that a breach must actually affect a member of the union. Let us be very clear: the union cannot enter a workplace or look at any record unless the union reasonably suspects a breach of the law that affects one of its members. There are serious penalties if a permit holder makes any representation that he or she suspects a breach when he or she does not, or that the union has a member affected by a suspected breach when the union does not. The onus of proving that a person has a reasonable suspicion of such a breach falls on the permit holder.

Second, before seeking to enter, the permit holder must give written notice to the employer, including details of the alleged breach. The employer is able to challenge this notice to Fair Work Australia if it does not believe that the strict criteria I have outlined are satisfied. It is only once these strict requirements are met that we even get to the question of what documents can be examined by the permit holder in order to investigate the alleged breach. A permit holder is able to inspect documents directly relevant to investigating the alleged breach that affects their members in respect of which they hold a reasonable suspicion, a suspicion they carry the onus of proving and in respect of which they have given notice and particulars to the employer. (Time expired)

Question put:

That the amendment (Senator Hanson-Young’s) be agreed to.

Original question agreed to.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for the next day of sitting.