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Trade Practices Legislation Amendment Bill

I would like to address the house on the Trade Practices Legislation Amendment Bill (No. 1) 2005 that we considered last Tuesday. My colleague Senator Milne of the Australian Greens outlined our concerns about the anticompetitive nature of some of the provisions of this bill and the merger provisions but left the collective bargaining elements to me. As I did not get an opportunity to outline the Greens concerns, I would like to take the opportunity to discuss our philosophical approach to that legislation.

I believe this is yet another attack on the union movement and workers by this government-the next in a long line of bills coming before this place. Section 93AB(9) limits who can and cannot be involved in collective bargaining, and limits the ability of small business to choose their own bargaining agents when negotiating with larger businesses or associations. We keep hearing rhetoric about the importance of choice in the workplace and the marketplace from this government, but here is a provision that seeks to limit the choices of small businesses.

Section 93AB(9) excludes trade unions or anyone acting at their direction from lodging a collective bargaining notice on behalf of a small business. This seems to be in contradiction with claims made by the government that they would not be seeking to exclude unions or take away the right to choose representation. This will have a significant impact on small businesses-on family businesses growing fruit and vegetables for large supermarket chains, chicken farmers selling their birds to takeaway restaurants, on independent truckies driving across the Nullarbor or lifeguards keeping an eye on your kids at the beach or the pool.

Small businesses have sought provisions within the Trade Practices Act to help make collective bargaining easier. The act improves the ability of some small businesses to collectively bargain, which is a good thing. It is supported by small businesses and is in the public interest. There were no calls by small businesses to exclude trade unions as a form of representation; however section 93AB(9) excludes trade unions from collective bargaining. This is not something that was sought by small businesses and is neither in their interest nor in the interest of our nation.

The intent of this subsection is supposedly to protect independent contractors from unions. I am not personally convinced that independent contractors need to be protected from unions in this way but I am certain that some independent contractors need protection from the anticompetitive behaviour of large corporations who can use market share as a tool to drive down the value of their work. That is what this legislation is in effect doing.

The problem with this legislation is that it sets one rule for some types of small businesses and a different rule for other small businesses. One sort of collective bargaining-that undertaken by business associations-is seen to be a good thing. If used car dealers want to be represented by the MTAA or pub owners by the AHA then that is said to be okay. But when owner-drivers or construction contractors-who are small businesses, not employees-have chosen to be represented by a trade union this is seen to be a bad thing and disallowed. When chicken growers, dairy farmers or canegrowers want to bargain collectively then they should be able to choose how they are represented. I believe that section 93AB(9) goes against the principles of freedom of association. It denies some businesses the choice of their own representative. It is inconsistent to allow some types of associations and not others.

This is not about anyone being forced to become a member of a union, an association or an industry body-it is about choice. The problem is that some small businesses are being excluded from having representation and from being part of collective bargaining and face unfair and unjust situations in the marketplace, where large corporations or associations have unfair power to set the prices of goods and services. Not only do the small businesses lose out in these situations but consumers are also being ripped off and denied choice by the big players.

Listen to what the ACCC had to say about this matter in its 2004 discussion paper on collective bargaining:

When negotiating with big business, small businesses often feel that they have little or no bargaining power and that they are sometimes forced to accept unfavourable terms and conditions, including unfavourable prices. In some industries, small businesses see collective bargaining as an effective strategy to redress this imbalance in bargaining power and achieve more appropriate commercial outcomes in their dealings with big businesses.

A classic example is the road transport industry, where owner-drivers have typically been represented by unions while the large trucking firms have been represented by an industry association.

Clearly in this situation, we could not expect the industry association to be able to properly represent the positions of both parties at the bargaining table.

... and clearly, should it try to do so, the larger players with well-established representation on the association would have a much stronger voice.

Independent owner-operators in the transport industry are particularly vulnerable to the activities of large transport operators attempting to improve their bottom line by paying truckies less and pushing them to meet ever tighter deadlines. This is a recipe for disaster, as owner-drivers will be forced to cut corners on safety, reducing their maintenance costs and spending longer hours on the road. This will have a direct impact on the safety of our roads and the additional costs borne by the community.

Owner-drivers account for 60 per cent of the road freight sector. These estimated 29,700 drivers differ from other independent contractors in that they provide their own vehicles as well as their labour. This entails serious overhead costs. The majority of owner-drivers perform the majority of their work for a single transport operator or principal contractor. These large operations are already putting the squeeze on independent truckies, and without the protection of collective bargaining things can only get worse. Owner-drivers face significant disadvantage by comparison to the large transport companies when it comes to negotiation. Can they truly expect the industry association that already represents the large trucking companies to represent their interests? No, they cannot. Large transport and freight operators will use their significant bargaining advantage to push down transport costs.

Owner-drivers will end up pushing safety in order to be able to put food on the family table. Less money for maintenance and longer hours on the road are a recipe for disaster and, ultimately, the community will bear the cost. I deplore these radical, ideologically-driven provisions whose only aim is to hurt the trade unions, irrespective of the fact that they are serving the interests of promoting open and equitable trade practices in these industries.

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