Fair Work Amendment Bill - Speech to Parliament

I am pleased to rise to speak in opposition to this bill. There are a few things in the contribution of the member for Corangamite that need to be responded to. I will start where she finished. She said that this government is all about jobs. The joblessness rate in Victoria is a shame. It is a tragedy and it was a major factor in the change of government in Victoria. If the government wishes to be judged on its record on jobs, let them be judged on that frame.

There were a couple of other things that she said. The member for Corangamite talked at some length at the start and at the end of her contribution about the 'sensible centre' in industrial relations. That is a favourite phrase of the Prime Minister that bears no resemblance whatever to this government's agenda for industrial relations. I note that the policy that related to the bargaining changes that are the subject of this bill did refer to striking a balance.

As the member for Corangamite said, that was a balance between the obligations on workers and unions and the obligations on managers. However, as has so often been the case under this government, between the policy that was announced before the election and the policy that is before us and contained in this legislation, there has been a substantial change. The balance has been removed. This is all about focusing on workers and unions, not about managers and their obligations in relation to productivity.

It was very interesting that the member for Corangamite criticised the Leader of the Opposition and the member for Bendigo in terms of their contributions to the productivity aspect of this debate—productivity, of course, being the purported justification for this legislation—but she could not say one word about how the provisions contained in this bill would boost productivity. It simply relies on the innate ideological view of members opposite that our pathway to productivity is by driving wages down, weakening unions and taking away employees' rights. The evidence, frankly, goes the other way. Members opposite should be reminded that labour productivity growth has been consistent over the last 12 quarters—that is, three years. Labour productivity is not at the heart of Australia's productivity challenge and, even if it were, the provisions contained in this bill would do very little to boost labour productivity.

I also note that the member for Corangamite asserted that this legislation maintains employees' rights. If she had been listening to the contribution of the member for Griffith, who is a person who knows quite a bit about this—I would venture, quite a bit more than the member for Corangamite—she would understand that that is simply not the case. What we have in this bill is fundamentally an attack on collectivism and on rights—important rights that go to the heart of pretty fundamental questions that go to power relationships between people who earn their living through a wage and those who employ them.

This bill is also, as I said in my opening comments, a broken promise, which perhaps makes it a fitting end to the year. It is flawed in concept and it is also flawed in execution. Above all else, this is very poorly constructed legislation that may not even serve its own purposes. This bill is a disingenuous, pointless and deeply ideological piece of legislation. It reminds us that this government's commitment to red-tape reduction does not extend to the realm of work. This is a matter, again, of form and substance. At one level, this legislation is all about red tape for the sake of it, in terms of the provisions that go to bargaining and productivity tick-boxes. I will say more on that issue. It is also worth noting in this debate how many times this government has already returned to the legislative whirl in relation to industrial relations, despite having, in effect, committed to not doing so prior to the election.

To those opposite who love to speak of unnecessary legislation, I ask this question: what is the problem that this bill is trying to solve? The explanatory memorandum that comes with it is pretty unhelpful and even obtuse on this point. This is pretty fundamental. What is the evidence, for example, of a wage explosion? I said earlier—

Mr Husic interjecting

Mr GILES: There is none, member for Chifley. You would think that would be a relevant consideration.

Mr Husic interjecting

Mr GILES: Yes, indeed—balance should recognise that. The evidence is that labour productivity growth has been consistent over 12 quarters. It has increased over the last three years. I will speak further on the thinness of the productivity justification as I turn to the provisions of the legislation in detail.

I also think some context is required in this debate. Today, as we speak, work is less and less secure. Some of the attitudes towards the position of wage earners is, frankly, staggering. I saw on the front page of the Australian Financial Review yesterday, in response to some commitments made by the new Victorian government, the suggestion that public servants in Victoria would get free money. The suggestion that underpins this, the ideological position going to the wage share that is fair and proper, is staggering. All of us in this place understand—or we have been told and should have listened—the standard-of-living pressures, the cost-of-living pressures, that our constituents face.

Labor members are up for real engagement on these matters, but to simply suggest that pushing downward pressure on wages by denying workers and their representatives the capacity to bargain fairly is just ludicrous. We are up for broad conversation about productivity and the things that might boost Australia's productivity, about investment in infrastructure and about having a national urban policy that might deal with some of the issues around the depth of our labour markets, for example. We are up for investment in skills and training—the sorts of things that this government is walking away from. We are up for a debate about innovation.

I spoke earlier about this bill being disingenuous, but I wonder if that might have been a generous description. The words of the minister in his second reading speech do not quite reach the heights of his 7.30 Report channelling of Comical Ali earlier this week following the defeat of his higher education reforms in the Senate, but they do sit pretty uncomfortably with provisions that are set out in the bill. He claims implementation of election policy. This is farcical. He is delivering on one side of the debate while denying any meaningful engagement and responsibility of the managerial side. For him to assert, as he does, that this bill will ensure that negotiations for enterprise agreements are harmonious and productive is simply nonsense. At one level—the pointless side of this piece of legislation—the issue is that the requirements are simply token, as Professor Andrew Stewart has advised.

This also goes a broken promise. Before the election, the coalition spoke about the joint responsibilities. In this bill it is all about workers. As the shadow minister said, if they were serious about addressing productivity and bargaining, they could have looked at, for example, amendments to the good-faith bargaining rules that would encourage parties to come together. The unevenness of these provisions is deeply problematic. Once again, this is a government that has given scant regard to the concerns of workers. We see obligations imposed on unions, on one hand, with the prospect of an effective veto, at the very least, and, on the other hand, a strongly enhanced bargaining position for employers.

I am also more than a little troubled by the minister's indication of what he describes as the common sense test. What does this mean? What is common sense? It should be clear to anyone in this place that these debates around industrial relations are deeply contested issues, and they are vital. They go to how most of us earn our living, how most of us see ourselves and how most of us provide for our families. The 'I reckon test' is simply not good enough. It is consistent with the shoddiness of the legislation at large. I think that is why the shadow minister has proposed—and this would be sensible—to seek the views of stakeholders on these issues through a Senate committee process. If the minister feels differently about this, he might advise me and my colleagues via SMS as to his real justification.

There are three substantive components to this bill. Firstly, there is the issue of productivity discussion during bargaining—amendments to section 187(1) of the Fair Work Act—which requires the Fair Work Commission to be satisfied, before approving an enterprise agreement, that improvements to productivity at the workplace are discussed during the bargaining process. According to the explanatory memorandum, this does not require the parties to agree to terms, nor to include terms in an agreement about improving productivity. Well, what is the point, particularly when productivity is not defined in the proposed amendments, nor is it presently defined in the substantive act? So, I ask myself: what is the point of discussing productivity when it does not go to the enterprise agreement and is not adequately defined by the amendments or the fair work agreement? Again, I harken back to the contribution of the member for Corangamite who talked about productivity but did not go to any of the challenges of boosting productivity, or to consider, other than merely assert, that these changes would somehow magically make things better. In practice what we have is another box to be ticked that adds nothing substantive to the bargaining process. It is more red tape.

You would think the parliamentary secretary, the member for Kooyong, would be horrified, or perhaps excited, that he can wrap up this into his bonfire of unnecessary regulation next year. This is an unnecessary process with a slightly sinister undertone that it is clearly introduced to restrict workplace rights. On this point there is also the risk that this provision could be used to manipulate bargaining. An employer could say that it does not want to discuss productivity until it has discussed wages or other conditions. This is a possibility because the amendments, as they are drafted, state that productivity must be discussed during bargaining for the agreement, and that they must be met before the commission can approve an agreement. This may be a risk or this may reflect a failure to understand the process.

I turn also, now, to the question of the protected action changes which are deeply concerning. I refer members to the contribution of the member for Griffith, not just because of the manner in which she clearly set out the concerns she and Labor members have, but because of the depth of her experience in this area. She is someone who should be listened to by people like the member for Corangamite. I think it is deeply concerning to see this claimed implication of productivity as an excuse to hinder the capacity of workers to secure their rights through a protected ballot. This is a very significant right. It is upheld in international instruments to which we are a signatory, and we should, as I have said often in this place in respect of similar matters, mean what we say in relation to these obligations that we assume.

The amendments to section 443(2) state that the Fair Work Commission must not grant a protected action ballot in relation to a proposed enterprise agreement if it is satisfied the claims of the applicant are manifestly excessive or would have a significant adverse impact on productivity. Clearly these changes would make it harder for a protected action ballot to be granted. The explanatory memorandum says that the requirement may limit access to protected industrial action. Clearly the previous speaker had not familiarised herself with that when she spoke about upholding employee rights. This is a pretty fundamental right for workers. The government, through the explanatory memorandum, has admitted that this places the threshold for protected action higher. This amendment does not only introduce red tape, it ties the hands of workers with it, reshaping, again, the power relationships.

If these amendments were to be read strictly, any industrial action could be construed as impacting productivity. I ask myself the question: where would this leave enterprise bargaining? These amendments, above all else, are poorly drafted and clearly would create significant uncertainty in a vital area of the law. Again, the explanatory memorandum refers to workplace productivity as being a feature of the framework, but all I can see from these amendments is more red tape and, concerningly, fewer rights for workers. I do not see how it can be contested that these things do not equate to workforce productivity, but rather are another assault on hard-working Australians. I would be assisted if government members could explain, or even better, reconsider what they think workplace productivity is.

The third substantive element if this bill, briefly, is contained in amendments to section 443(1A) which represent an attempt by the government to codify the decision of Total Marine Services, but go further than this. The definitional elements of what constitutes 'genuinely trying to reach an agreement' have been around since the early 1990s under the Keating government. This codification fundamentally is unnecessary given that the commission does not disregard the factors referred to in the new section. Here we have, again, the government seeking to introduce additional requirements not just to codify the case law as these requirements, unsurprisingly, place additional burdens on unions. No such burden is placed on employers;—far from the balance asserted by the previous speaker—it is placed only on workers through their unions. So, these amendments are a clear broken election commitment.

This government seems to be, through this legislation, doing its best to make workplace laws, at best, ambiguous and uncertain but also attacking workers and their rights. So, I am pleased to stand with the shadow minister and other Labor members in opposing this bill and in welcoming, contrary to what the member for Corangamite said, a real conversation, a real debate, about this bill, a real debate about workplace productivity and about productivity more generally. A Senate committee would provide an opportunity for that debate. These issues are vital. They are vital for the economy and they are also vital for our society. Important, indeed, fundamental rights and vital interests are at stake here.

This is a piece of legislation that was flawed in concept and is flawed in execution. The House should not pass this bill.


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