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Fair Work Transition Bill

Speeches in Parliament
Rachel Siewert 15 Jun 2009

I rise tonight to speak on both the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. I will refer to these bills as the ‘fair work transition bill' and the ‘fair work referral bill' respectively.

With the passing of Fair Work Act in March this year, Australia is moving away from what we believed was the profoundly unjust Work Choices regime of the Howard government. The Greens have consistently argued for a fair, just and sustainable industrial relations system to replace Work Choices. We are not satisfied that the government has moved far enough from and truly repudiated all the unjust elements of Work Choices, but the Fair Work Act is now here and today we are focusing on the process of transitioning away from those elements of Work Choices that the act amended.

The fair work transition bill is important as it deals with the most immediate effects of changing from Work Choices to the Fair Work Act. The Greens are generally supportive of the approach taken by the government in this fair work transition bill. We do, however, have a number of concerns that we believe should be addressed in the interests of working Australians.

We are particularly concerned about unfair Work Choices agreements. The biggest problem in the government's approach to transitioning from Work Choices is that the government is leaving thousands of employees stuck on unfair Work Choices agreements, including AWAs. This chamber has heard time and again about the travesty of AWAs: how they ripped away working people's conditions, made them vulnerable to their employer and undermined collective bargaining. AWAs were at the forefront of the union movement's Your Rights at Work campaign against Work Choices, which assisted the ALP into government. AWAs are at the forefront of the ALP's promise to abolish Work Choices. As the Deputy Prime Minister said in her second reading speech on the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 in March last year:

All last year, every member now sitting on this side of the House campaigned in electorates all over this country on our commitment to abolish Australian workplace agreements and to introduce Labor's new system.

When the Australian people read our policy documents, or heard the Prime Minister speak, including at our campaign launch, or listened to me debate the previous Minister for Employment and Workplace Relations they were left without a doubt that central to our workplace relations policy was a commitment to rid Australia of all statutory individual employment agreements

... ... ...

We believe that ... there is no need for AWAs or any statutory individual employment agreement. The essence of such agreements is that they override the safety net.

These are the sentiments that the Greens agree with. We too campaigned vigorously against AWAs. We also passionately believe that the safety net should be there for all workers and should not be able to be undermined by individual agreements. Yet, despite the ALP's promises, AWAs are still with us and will be for many more years to come. Work Choices will not be dead until the last AWA is terminated. Work Choices is having a slow and-for those stuck on unfair AWAs-painful death. The Greens have held a consistent position since before the last election that substandard agreements-individual or collective-should be able to be terminated and the employee employed on the more favourable conditions of the award or superior collective agreement that covers the employer.

We moved amendments to the Workplace Relations Amendment (Transition to Forward with Fairness) Bill in 2008 to provide a mechanism for employees to terminate unfair AWAs. These amendments were not supported by the government and many workers have unfortunately stayed on unfair AWAs ever since. We are going to try again with this bill. We will be moving an amendment to give Fair Work Australia the power to terminate or vary unfair workplace instruments where they disadvantage the employee compared to the new safety net. The substance of this amendment was recommended by the ALP senators in their report on the Senate inquiry into this bill. We will also move another amendment, recommended by Professor Andrew Stewart and adopted by the majority report of the inquiry into this bill, that a new enterprise agreement will automatically replace an AWA or ITEA without the need for conditional termination provisions. The conditional termination provisions do not address the problem of employees stuck on unfair AWAs or ITEAs. Neither employers nor unions believe that they will be used effectively. The requirement that an employer must agree to a transition termination prior to the nominal expiry date of the AWA or ITEA renders them useless for the workers who are most in need of relief from AWAs.

Too many workers have been subject to inherently unfair workplace agreements due to the aberration that was Work Choices. In providing a fairer safety net comprising the National Employment Standards and modern awards, the ALP government has an obligation to ensure that workers cannot continue to be employed on conditions that fall below this safety net. The ALP government is failing to meet this most basic of obligations to the workers who suffered under Work Choices.

Another area of concern to us is the award modernisation process. It always makes me shudder when I agree with the opposition on IR, although I think we have different perspectives of award modernisation. Award modernisation has been attracting a great deal of criticism recently from both employers and some unions. The Greens voiced our concerns about the process right from the very beginning. We were concerned that the process would result in a watered-down safety net, to the detriment of workers. While we agree that awards do need to be modernised, we do not want to see the fundamental value of Australia's unique award safety net eroded.

The government has set the Australian Industrial Relations Commission a massive undertaking, which was always going to be difficult to achieve in the time frame provided. There were always going to be winners and losers out of this process. The government's intention that the process would neither disadvantage employees nor increase employer costs was never going to be realised in such an exercise. For the Greens, the success of the award modernisation process is whether or not it results in a comprehensive safety net of wages and conditions that underpin a decent standard of living for workers.

We note and support the intervention by the Minister for Employment and Workplace Relations to ensure that no award can remove from its protection workers who earn less than $100,000 a year. The Greens were very concerned to hear of the Clerks-Private Sector Award and, in particular, the provision exempting employees on as little as $44,000 a year from key award conditions. This decision clearly contradicts the award system envisaged under the Fair Work Act. We also note the minister's intervention to create a separate clerks and restaurants award. We would be very concerned if the minister makes a habit of undermining her own independent process in the interests of the lobby groups that can shout the loudest.

The Greens support the take-home pay provisions in the bill. They are necessary to ensure workers do not lose pay as a result of the safety net shifting beneath them. We agree with submissions from various unions to the Senate inquiry that Fair Work Australia should be able to take into consideration the loss of significant conditions as well as financial considerations in making these orders. We note too that the majority report of the inquiry from the ALP senators supported this position. Such an extension is vital for many of the most vulnerable award reliant workers, who will face potentially significant changes in their working hours due to the award modernisation process.

We do not support the amendments put forward by the opposition for cost recovery orders for business. We note that the AIRC will be determining transitional arrangements which can last up to five years. The Greens, unlike the Liberal Party, believe in the need for a strong, robust and adequate award safety net. It is an essential part of building a fair society. The opposition's amendments, we believe, would allow employers to essentially get exemptions from awards that would undermine the safety net.

I also want to specifically note the provisions in the transitional bill for a two-year review of modern awards, which was included as a result of an agreement with the Australian Greens when we were debating the Fair Work Bill. This earlier review was generally supported in submissions to the inquiry from both businesses and unions. The Greens believe an earlier review is important in ensuring that the new award safety net is adequate.

The Australian Greens continue to be concerned about the long-term consequences of the new award system under the Fair Work Act. As we stated in the debate on the Workplace Relations Amendment (Transition to Forward with Fairness) Bill way back in March 2008, we want to see a fair, robust and relevant award system. We believe that awards should provide a comprehensive safety net for workers on an industry or occupational level that is flexible enough to allow for industry-specific conditions but secure enough to provide appropriate protections. Awards must be living documents. They must be able to adapt to the changes in community standards. Time will tell if the modern awards system will provide the fairness Australian workers expect.

I want to make a brief comment on a notable inconsistency in the bill, which is the government's approach to bargaining and industrial action currently underway. Unlike most other processes dealt with in the fair work transitional bill, bargaining must begin again from 1 July. This also means that any authorisation for industrial action becomes void and employees will have to start the process again. Given that the regime for taking protected industrial action is very similar under the Fair Work Act to what it was under Work Choices, this seems another unnecessary impediment to the right of workers to take industrial action. I understand there may be a particular problem for employees of Telstra and in some universities who have long-running authorisations in place. We urge the government to address this issue and ensure that parties who are undergoing bargaining now and have industrial action authorisations in place are not disadvantaged by the transition to the Fair Work Act.

I also wish to briefly comment on the low-paid bargaining stream. In the debate on the Fair Work Act, the Australian Greens moved an amendment to delete the requirement that an employer must not have been covered by an enterprise agreement in the past to be subject to a low-paid workplace determination. Our amendment was not supported by the government. The fair work transitional bill extends that requirement to any collective agreement made in the past. This means that an employer may be exempt from the low-paid bargaining stream if they made a collective agreement years ago or if they made a Work Choices non-union collective agreement where actual bargaining may never have occurred. In places such as Western Australia where we have had unfair statutory individual agreements for many years, in fact, before AWAs, this provision could undermine the intention of the low-paid bargaining stream-a stream which the Greens strongly supported. It is an unnecessary and counterproductive limitation on accessing a low-paid workplace determination.

The Greens support the low-paid bargaining stream provisions. They are vitally important in encouraging and achieving genuine collective bargaining in low-paid industries, which are often female dominated industries. We do not understand why the government initially sought to limit their application. We are pleased to see that the government is partially addressing this issue with its amendments with the effect that collective agreements that have ceased to operate will not exempt an employer from low-paid bargaining. We would prefer a broader amendment, as recommended in the majority committee report, to the effect that Fair Work Australia is given the discretion to decide on a low-paid workplace determination after considering all the circumstances, including past bargaining.

The final part of the transitional bill that the Greens have significant issues with is the new representation orders. In our view this as another example of the government putting the interests of business ahead of the rights of workers. The purported reasoning for these new orders is to deal with the new rules for right of entry and the fears expressed by business that demarcation disputes between unions will increase as a result. We note the new orders are not limited to right-of-entry disputes. Indeed, there need not even be an actual dispute at all. We note the amendments the government moved in the House to clarify that a dispute need only be threatened, impending or probable. Like the senators in the majority report on this inquiry, we do not believe these provisions are necessary. We believe they will have the potential to breach the rights of workers to freedom of association and will be used by employers to pick and choose the unions they wish to deal with. If this occurs it will be unacceptable.

I now wish to make some brief comments in support of the two sets of amendments moved by the government in the House. Firstly with respect to outworkers, the Greens are pleased the government has been prepared to listen to the needs of these most vulnerable workers and to act to ensure more complete and appropriate award protection for these outworkers. The Greens have a longstanding commitment to ensuring appropriate and robust protections for outworkers. The analysis and recommendations made by the majority report on the inquiry into the transitional bill points to unfinished business, and we note the government has not acted on all the recommendations. The Greens will be keeping a close eye on the operation of the Fair Work Act and the transitional provisions in respect of outworkers to ensure the utmost protection for these workers is assured. Secondly, we note the insertion of a requirement that Fair Work Australia provide a report on the operation of the unfair dismissal system after three years. The Greens support this proposal. We think it is important for accurate and useful data to be collected on the unfair dismissal system to inform the debate on this issue and on the operation of the unfair dismissal system under the Fair Work Act.

I would like to briefly turn now to the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. The Greens support the bill and understand the necessity for Victorian workers to be brought within the ambit of the Fair Work Act. We also note that the Queensland, South Australian and Tasmania governments have indicated in-principle support for referring powers in respect of private sector employees. This however does not assist non-federal system employees in my home state of WA.

The Greens have been concerned for some time about the plight of non-federal system employees, especially those in the community and social services sector. As we discussed in the debate on the Fair Work Bill, many of these employees do not know whether or not they are in the federal system given the technical and complicated determinations of whether their employers are constitutional operations. If they are not in the federal system then while they may be currently covered by transitional instruments these instruments will be terminated in 2011 and the workers will lose important protections. We appreciate that the government is attempting to deal with the jurisdictional mess by negotiating with the states to refer their powers. Unfortunately the Western Australian government has specifically ruled out such a referral. This situation is a consequence of moving away from the conciliation and arbitration power to a reliance on the corporations power. It is an issue that is not going to go away and the government must ensure that those workers caught out by its law under this approach are protected.

The Greens will be moving a number of amendments in the committee stage of this debate, as I indicated, particularly to deal with the issue of unfair AWAs. We will continue to raise this issue because we believe it is an extremely important issue. The government made a commitment that AWAs would cease. That commitment has not been followed through. There are workers around Australia who will continue on unfair AWAs for a good many years. It seems nonsensical to me that the government does not move to address those and to support those workers who find themselves on AWAs that are unfair. The government has mechanisms it can use to address this issue and it should take the opportunity to support amendments that get rid of unfair AWAs. I will be going through the details of those amendments once we move to the in-committee stage consideration of amendments.

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