Second Reading Speech on the Fair Work Bill
Date: 10 March 2009
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.
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 hone 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 points 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 there 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