HANSARD EXTRACT
|
Workplace Relations Amendment (Better Bargaining) Bill
2005: Second Reading |
| 6 September 2005 |
Mr HAYES
(Werriwa)
(6.49
p.m.)—The
Workplace Relations Amendment (Better
Bargaining) Bill 2005 is another manifestation of the
government’s extreme and unfair industrial relations agenda, and I
am proud to be able to stand before this chamber today and oppose
it. While the title of the bill may seem harmless, and it must seem
a bit curious that Labor would be opposing a bill that is named
‘better bargaining’, a cursory glance at its details reveal why this
piece of legislation must be opposed. The bill is not about
producing a more harmonious employment relationship. It is not about
promoting a better bargaining environment. This bill is about
weakening the bargaining position of working Australians and
strengthening the position of their employers. This bill will do
nothing to promote good-faith bargaining or to facilitate the better
resolution of industrial disputes. The bill merely creates an
environment that effectively removes the right of employees to take
industrial action but, funnily enough, it will not apply the same
degree of discipline to employers.
I note with interest the second reading speech of the Minister for
Employment and Workplace Relations in which he outlines that the
intent of this bill is ‘to facilitate the use of workplace
bargaining processes, to make them more user-friendly and as fair as
possible’. After reading the provisions of the bill I have to wonder
who the minister might have had in mind when he decided he wanted to
make a better and more user-friendly bill. It certainly was not the
average, hardworking Australian worker. The minister intends to make
the system user-friendly for employers and stack the deck in favour
of them when it comes to nutting out the key provisions of the
employment relationship. In short, the bill will do a number of
things: firstly, it will restrict the right of employees to take
protected industrial action; secondly, it will grant third parties
the right to intervene in industrial disputes; and, thirdly, it will
overturn the decision of the Australian Industrial Relations
Commission in the Emwest case which enabled bargaining on matters
and protected industrial action during a certified agreement under
certain and particular circumstances. It also extends the capacity
of the Australian Industrial Relations Commission to suspend a
bargaining process where there is protracted industrial action, but
it introduces a new provision restricting the same Industrial
Relations Commission from acting to become involved in the process
of dispute resolution by preventing the commission from exercising
powers under section 170MX. It also allows for damages to be sought
if a bargaining period is suspended and industrial action continues.
I am sure that all members would have read the report in yesterday’s
Australian that indicated that 75 per cent of respondents to
an ACTU survey said the government’s industrial relations proposals
would not deliver better pay and 62 per cent did not believe more
jobs would be created. The most telling aspect of the survey was
that 62 per cent of people said they believed they would be worse
off under individual contracts. The ‘Save Kevin Andrews’ committee
must be working overtime to get the next round of advertising ready
to go after these latest results.
I am sure that, once people become aware of the environment to
negotiate individual contracts which the government will impose
through this bill, they will have even greater reason to fear
negotiations. The most interesting aspect of the bill is the fact
that, once again, the government is introducing one rule for one
group and a vastly inferior set of conditions for another group.
Recently I brought to the attention of the House the case of Boeing
workers in
Newcastle, members of the Australian Workers Union. These workers
have been locked out for a number of weeks because, after having
worked under individual contract arrangements for the last four
years, when their agreements were up for negotiation they decided
they no longer wanted to be under individual contracts but wanted a
collective agreement. They had tried individual contracts and they
did not work for them, so they decided that a collective agreement
was the way to go. The result of this negotiating effort with Boeing
has created an almost intractable industrial dispute, not about
terms and conditions; it is intractable because the employer wants
to impose individual contracts or in this case Australian workplace
agreements and the employees want a collective arrangement. This has
resulted in a lockout—an employer initiated industrial action. These
people have exercised their choice. They want a collective
agreement, but all they have is a locked gate.
Now let us consider the position faced by the Boeing workers in the
light of the government’s brave new world of negotiation as
introduced under this bill. We have a group of employees exercising
their rights to a collective agreement, we have an employer who has
decided that that is not the way it wants to go and we have an
industrial dispute. Since February this year, Boeing has
consistently refused to negotiate a collective agreement. The
employees want a resolution to the dispute. They have been locked
out of the premises now for in excess of nine weeks. They are quite
happy to consent to this matter being arbitrated by the Australian
Industrial Relations Commission, the tried and tested industrial
umpire. These workers are not militant; all they want is a
collective arrangement. How would the provisions of this bill deal
with their situation?
One option is to have an application for a suspension of the
bargaining period heard by the Australian Industrial Relations
Commission. Without a bargaining period in place, any industrial
action becomes illegal. This could result in action being taken
against individual workers for the recovery of damages. That would
be not an insignificant result. Another option is that a third party
may intervene in the dispute by applying to the Australian
Industrial Relations Commission for a suspension of the bargaining
period. If granted, it would have the same effect on the individual
employees. Another option is to have the Minister for Employment and
Workplace Relations apply to the Australian Industrial Relations
Commission to have the bargaining period suspended. But none of
these things will occur, for reasons I will outline later.
I am sure that people are wondering, if the FA18 jet fighter planes
that Australia relies on to protect its borders are not being
serviced, why the minister would not intervene in this one
particular dispute. Why would a supplier of Boeing, someone who
would be granted rights as a third party to intervene, not apply for
a suspension of the bargaining period, one might wonder. The
disappointing thing is that none of these options will find their
way into the Boeing dispute as the bill specifically excludes
employer-initiated industrial action—lockouts—where they have been
instigated in pursuit of an Australian workplace agreement
negotiation. It seems odd that a better bargaining bill would not
contain a provision that would actively bring both parties to the
negotiating table to settle the matter once and for all.
This bill gives the go-ahead to companies like Boeing to lock its
workers out provided there is an Australian workplace agreement
agenda afoot. Under the provisions of this bill, if the dispute
occurs during an AWA negotiation, the employer is entitled to lock
people out. It seems staggering that a better bargaining bill would
not have a provision to initiate better bargaining in a situation
like this. It is yet another situation in which the relative
bargaining position of the employer is given primacy over the
relative bargaining position of the employee.
This is yet another example of the government travelling down the
path to the creation of a one-sided industrial relations system.
This government has no intention of introducing a system in which
disputes are resolved; rather this bill will hinder the genuine
bargaining process because its objects are firmly embedded in the
government’s extreme industrial relations agenda.
As demonstrated in the Boeing example that I cited earlier,
employers will be granted yet another ‘get out of jail free’ card in
the bargaining process through the exclusion of employer initiated
lockouts under AWA negotiations. This is another example of how the
government, even if it does not get its whole industrial relations
agenda over the line, will set things up so that, by design through
a number of incentives hidden in the system, its obsession with
having AWAs introduced on a broad scale will still be achieved.
Rational employers will be encouraged to offer AWAs as it will give
them the prime bargaining position and all the various rights that
go along with it. Under the provisions of this bill employers will
be able to initiate lockouts when the negotiations get a bit tough.
You can rest assured that they will use this new found bargaining
strength, and actions such as those involving Boeing will not be
isolated examples.
To prove that, recent research conducted at
Sydney University indicates the growing use of lockouts. The
research, undertaken by ACIRRT—the Australian Centre for Industrial
Relations Research and Training—indicates that, over the period 1994
to 1998, 18,700 days were lost due to lockouts. When the period
between 1999 and 2003 is examined, we find that 194,500 days were
lost due to lockouts—an increase of some 940 per cent. On the other
hand, when examined over the same period, there has been a decrease
of 12 per cent in days lost due to strike action initiated by
employees. Dr Chris Briggs, the senior researcher for ACIRRT, said:
Lockouts simply would not have reappeared without Government
intervention and legislative change at the Federal level.
He went on to note that 91 per cent of lockouts happen under the
federal industrial system, and this bill is giving the green light
for them to happen more and more frequently. It seems that the
government has a view that the ability for working Australians to
withhold the one thing that they can withhold during a bargaining
period is somehow unfair. The government seems to hold the view that
Australian workers will take industrial action at the drop of a hat.
That is just not true.
I have been involved in industrial relations for many years in a
number of capacities and I have never seen industrial action taken
just on a whim. Wages and conditions are key aspects of the
employment relationship, no matter on what side of the bargaining
table you might find yourself. They are the terms under which an
employee decides to supply their labour and under which an employer
decides to purchase it. Accordingly, the negotiation of wages and
conditions is of paramount importance to both parties. This bill
takes away the right of employees to withdraw the biggest card they
hold—their labour.
Strikes and other forms of industrial action are certainly not taken
lightly. Under the decentralised system of industrial relations that
we have, the right to strike and other forms of industrial action
are part of the bargaining process. But, from my experience, labour
is only withdrawn as a last resort. The right to withdraw labour
should remain a basic right for Australian workers. It should remain
a basic right because when the negotiations reach an impasse it is
virtually the only thing they have left to prompt further action.
The right to strike is not only a right that should be preserved; it
is a right that was reconfirmed to employees by the Australian
Industrial Relations Commission when they handed down their decision
in the Emwest case.
The removal of the right to strike and of the capacity to
collectively bargain is yet another example of contraventions of ILO
conventions. While my opposition to this bill is obvious, I suggest
an alternative approach that would improve the position of all
involved in negotiations and actually produce a bargaining system
that would achieve outcomes, not hinder them. For instance, I do not
see the need to remove the consequential effects where a case has
been made out for suspension or termination of a bargaining period.
Power already exists under section 170MX of the Workplace Relations
Act, which provides for the commission, as soon as practicable, to
begin to exercise the use of conciliation powers under section 170MY
and arbitration, if it determines it necessary to resolve the
dispute, under section 170MX. If a case is made that there should be
suspension of a bargaining period or a bargaining period should be
terminated, there are provisions under the act presently that grant
power and jurisdiction to the Australian Industrial Relations
Commission to intervene, to conciliate and/or to arbitrate.
In other words, there are powers afoot to allow the Australian
Industrial Relations Commission to intervene with a view to
resolving a particular dispute—a dispute which, in the nature of
this case, would be intractable with little likelihood of being
resolved through the negotiating process. Bear in mind that the
Australian Industrial Relations Commission—via not only its charter
under the act but also its members—is required to act without fear
or favour when it comes to exercising those powers. Maybe
arbitration by the Australian Industrial Relations Commission is the
only reasonable way to resolve the issues between Boeing and its
employees at Williamstown.
There is a common theme when it comes to negotiations that have
reached a stalemate. It is similar to one of my own reasonably
recent experiences with the NRMA. For a period of about 12 months
the NRMA and its work force were involved in a long and protracted
industrial dispute. Calls were being made on radio—Alan
Jones and John Laws were invoked. There were concerns about women
not being able to access breakdown facilities if they were caught
late at night in their cars. Calls were being made about children
being locked in cars. So, whilst it may not have been a threat to
the national economy, there were certainly concerns for people who
access that service.
The dispute involved workers in more than one state, so on the face
of it it was an interstate dispute. The Australian Industrial
Relations Commission was approached for assistance. The only thing
it could do was render informal mediation. It was restricted because
there was a bargaining period in place. The commission was
restrained from suspending that bargaining period unless there was a
threat to the national economy. Oddly enough, the dispute was
resolved through access to the
New South Wales industrial relations system. Here is a company and
their employees in the Australian industrial relations jurisdiction,
but the only way to resolve this dispute was for both parties to go
off hand in hand to the New South Wales Industrial Relations
Commission, which in turn decided to impose arbitration, or at least
to give notice that it would arbitrate within a period of time. That
had a remarkable and sobering impact on that particular dispute that
had being going on for over 12 months. It brought the parties
together, back to the negotiating table to sit down and resolve
their differences before the independent umpire would impose a
resolution to the dispute. The fact that there was that facility
there caused that— (Time expired)
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