Government Committee Members
1. Senator Winston Crane - Liberal Senator for Western Australia
2. Senator Grant Chapman - Liberal Senator for South Australia
3. Senator Alan Ferguson (Deputy Chair) - Liberal Senator for South
Australia
1.0 INTRODUCTION
Government Senators' submit this report because we strongly disagree
with the conclusions and recommendations of the Opposition Senators'
majority report. It is clear from the Opposition Senators' report they
have ignored crucial evidence and emphasised the repetitive nature of
vocal opponents of this legislation in coming to their conclusions.
At the outset the Government welcomed a review of the Workplace
Relations and Other Legislation Amendment Bill as a mechanism for
the affected parties in the industrial relations arena to consider the
practical operation of its provisions.
Further, it must be fully acknowledged that Senate Parliamentary procedures
dictate that the Bill should have gone to the Senate Economics Legislation
committee. Unfortunately, for short term political gain, the Opposition
has flouted the parliamentary process by sending this to a references
committee where the Labor Party has a majority in its own right.
In addition, it must be fully recognised that when the Industrial
Relations Reform Bill, 1993 went before the Senate Standing committee
for Employment, Education and Training in 1993, the Labor Party decided
that a full inquiry could be held with only 2 days of public hearings
- hearings which were held only in Canberra. It is very clear when comparing
the processes of both the 1993 and current inquiry that the Labor Party
have chosen to misuse the Senate committee structure for party political
purposes whilst having little regard for the wishes of the Australian
public.
The capacity of the Committee to assist in developing an accurate appreciation
of the Workplace Relations and Other Legislation Amendment Bill
was flawed at the outset because of poor drafting of the Terms of Reference.
For example, reference (g) states:
“Whether any proposed powers exercised by another Federal
Government body would be better exercised by the Australian Industrial
Relations Commission, and whether further consequential amendments
will be needed to other Acts to achieve this”.
Parties responding to this Term of Reference had no indication which
Federal Government bodies were under consideration or what particular
powers of such bodies were to be reviewed.
In addition, and as discussed later in this report, references (f)
and (g) are in direct contradiction to one another. Hence, it would
have been virtually impossible for witnesses to fully address both references
at once.
In overview, the submissions and evidence to the Committee can be characterised
as blanket opposition on behalf of the union movement and its supporters
versus general support by employers and employer organisations.
The union movement's submissions and evidence to the Inquiry opposing
the Bill was orchestrated and coordinated by the ACTU. This is identified
in the ACTU's correspondence to all affiliates, circular 113/1996, dated
7 June 1996:
"CIRCULAR NO: 113/1996
LR:do 7 June, 1996
TO: ALL AFFILIATES
Dear Colleague,
RE: UNION INVOLVEMENT IN THE SENATE INQUIRY INTO THE WORKPLACE RELATIONS
BILL 1996
The inquiry established by the Senate Economics References Committee
is one important focus for our campaign against the legislation.
The terms of reference, a list of Committee members, notes to assist
in the preparation of submissions, a list of hearing dates and the key
themes developed by the ALP is attached.
It is crucial to demonstrate to the Committee a deep concern throughout
the community of the effects of the legislation.
All unions (including state and regional branches) should make a written
submission and encourage and assist members to do so.
The closing date for the submissions is 27 June 1996. The Committee
will invite some persons and organisations to give oral evidence at
hearings to be held during July.
The Committee must report to the Senate by 22 August 1996.
Union submissions can be short, addressing issues of major concern
to members and endorsing the ACTU submission.
Submissions should be as practical as possible, concentrating on experiences
of workers under state legislation and examples of how the current Act
has been used to protect workers.
Examples could be:-
1. How Workers were conned or pressured into state agreements in Victoria,
Tasmania and Western Australia, which disadvantaged them.
2. How the protections in the Act operate to prevent the approval of
sub-standard agreements, e.g. EFAs
3. How federal award coverage was used to prevent exploitation under
state legislation.
4. How the union used its right of entry to ensure that rights were
protected and awards observed.
5. How involvement of the Commission resolved a dispute.
6. How union involvement has helped companies improve the way they
work, while the existence of a low wage option would be likely to increase
conflict.
Examples from regional areas would be particularly useful.
The experience of workers under state legislation in Victoria, Western
Australia and Tasmania will be important in convincing the Committee
to oppose weakening the federal system and the introduction of individual
contracts (AWAs).
It is hoped to have a significant number of submissions from individual
workers (or groups in a workplace) in relation to experiences under
their jurisdictions and/or expressing concern at how they would be affected
by individual contracts under federal legislation if these were to be
introduced.
It could be quite effective for workers to explain the difficulties
they would face if forced to negotiate directly with the employer, if
right of entry required them to invite the union into the workplace
and if they were forced into part-time work or had minimum hours reduced.
They should also give examples of where union membership and union right
of entry, right to intervene in the Commission, etc have been helpful
in providing protection in the face of anti-union employers.
These submissions should be individual; signing a common document is
less effective.
It would be good if some individual workers could be available as witnesses,
although it should be noted that submissions can also be made in confidence.
Please notify the ACTU of submissions from workers you believe would
make good witnesses. The committee is prepared to consider visiting
workplaces.
Unions should contact any community organisations, academics, etc,
with which they have contact to encourage them to make submission.
In addition to the making of submissions it is important that a high
degree of interest is shown in the Inquiry's public hearings.
I will be contacting unions again to advise of arrangements for attendance
and other activities.
Please contact John Cairns, Linda Rubinstein or myself if you require
further information or assistance.
Yours sincerely
(signed)
TIM PALLAS
Assistant Secretary
attach.
KEY THEMES AND PROVISIONS FOR SENATE COMMITTEE INQUIRY
1. The Workplace Relations Bill breaches the Prime Minister's “rock
solid guarantee” that no-one will be worse off.
2. The Bill opens the door to cutting youth wages and introducing a
$3.00 per hour youth wage.
3. The Bill removes the fairness which is entrenched in the existing
industrial relations system.
4. The Bill proceeds from a fundamentally flawed assumption that the
parties to the employment relationship have equal bargaining power.
5. The Bill does not recognise the legitimacy and desirability of employees
organising and bargaining collectively:
6. The Bill severely restricts the central role of the Australian Industrial
Relations Commission in the Industrial Relations system.
7. The Bill undermines the award system as the dynamic framework for
the protection and advancement of wages and conditions.
8. The Bill removes workplace and enterprise bargaining from the protections
of the Australian Industrial Relations Commission.
9. The Bill will aggravate problems of inequality for women, young
people and those most vulnerable in the labour market.
10. The Bill fails to provide a core framework for the prevention and
settlement of industrial disputes.
11. The Bill emphasises the punishment of industrial action rather
than its resolution.
12. The Bill fails to ensure that Australia's labour standards meet
our international obligations.
13. The Bill introduces provisions that are constitutionally dubious,
including:
i) AWAs and certified agreements dependent on corporations power.
ii) Enterprise unions and autonomous branches dependent on corporations
power
iii) Unfair dismissal jurisdiction giving the Commission a judicial
function.
14. The Bill is long, complex and poorly drafted.
Key Provisions to be Opposed in the Senate Committee Inquiry
Note: This is an attempt to highlight the key provisions which need
to be strongly opposed through the Inquiry. It is not exhaustive, and
individual organisations will of course want to emphasise different
areas of particular concern to them.
Awards:
1. The limitation of the jurisdiction of the Australian Industrial
Relations Commission to “allowable award matters”. (s89A Workplace
Relations Bill)
2. The capacity for State employment agreements to override Federal
awards. (s152(2) & (3) WRBill)
3 The abolition of the Commission's power to make paid rates awards
(Part VIC Industrial Relations Act - repealed)
4. The abolition of the Commission's powers to make orders setting
minimum wages and ensuring equal remuneration for work of equal value.
(Divs 1& 2 of Park VIA IR Act - repealed)
5 The perpetuation of the capacity of the Commission to provide junior
rates in awards. (s90AB IR Act - repealed)
Agreements.
6 The lack of pre-agreement review of Australian Workplace Agreements
and their secrecy. (Provisions to be inserted)
7 The requirement that AWAs and certified agreements merely comply
with the statutory minimum conditions (rather than a “no disadvantage
test”) (s170VG & 170LT WRBill)
8 The new stream of certified agreements which can be entered into
by corporations and employees without union involvement. (DIV 2 of Part
VIB WRBill)
9 The defects in the statutory wage minima for trainees and apprentices,
which create the potential for reduced wages. (DIV 4 of Park VIE WRBill)
10 The creation of the Employment Advocate. (Part IVA WRBill)
Industrial action and organisations:
11 The increase in penalties concerning industrial action, including
the reintroduction of the secondary boycott provisions to the Trade
Practices Act. (ss127 & 294 WRBill: ss45D & E TPAct)
12 The abolition of the “conveniently belong” provision. (ss189(I)
(j) & 204 (4) IRAct - repealed)" [1]
This orchestration was confirmed by witnesses to the Inquiry:
Senator Ferguson -Ms Creed, as well as being secretary of
your Union, are you a Federal council member and also an affirmative
action delegate?
Ms Creed - I am a member of the Union's Federal council. I
am not an affirmative action delegate to the Union, no.
Senator Ferguson - I presume in your position you are aware
of circular 113 that was sent out this year by Tim Pallas on 7 June
requesting union involvement in the Senate inquiry. It was sent out.
I will give you a copy.
Ms Creed - That would be nice.
Senator Ferguson - It is one that was sent out to all affiliates.
Are you aware of that document?
Ms Creed - There are so many circulars that come from the
ACTU but, yes, I have seen this.
Senator Ferguson - Do you feel that you have complied with
some of the requests? I will just highlight a couple. One says that
all unions, including state and regional branches should make a written
submission and encourage and assist members to do so. Have you assisted
any of your members to write submissions to this inquiry or to make
contributions to the inquiry?
Ms Creed - Yes. For example, Judy Horton, who is here, has made
a submission as well”. [2]
This was further confirmed by Ms Jennie George when responding to a
question from Senator Ferguson:
Senator Ferguson - ...All I asked was whether it was orchestrated
from your office.
Ms George - Certainly it was coordinated as the ACTU is the peak
body representing all workers who belong to unions in Australia. [3]
The submissions made against the Workplace Relations and Other Legislation
Amendment Bill by State Labour Councils, individual unions and individual
union members reflect this approach.
The union movement and its supporters have chosen to adopt a position
of total opposition to almost all aspects of the Workplace Relations
and Other Legislation Amendment Bill. Few constructive suggestions
were proposed. Many submissions were directed more towards the interest
of the Unions themselves rather than the interests of their members.
This negative approach has compromised the usefulness of this inquiry.
The union movement also attempted to magnify the appearance of opposition
to the Workplace Relations and Other Legislation Amendment Bill
by many unions appearing repeatedly with each State Branch appearing
before the Committee.
This was aptly highlighted by Senator Ferguson during the public hearing
when he stated:
Senator Ferguson - You talk about submissions not mirroring the
ACTU position but many of the submissions follow very strongly the same
line. We did have a situation in Queensland, of which you are probably
aware, of where we had - I think in the case of Mr Ludwig Jnr - a submission
presented to us which was almost word for word identical to the one put
out by the Queensland Trades and Labour Council when the Queensland Trades
and Labour Council specifically said to us that they had notified their
member unions or affiliates or people whom they sent the disc to that
they did not want it copied. Yet we had a submission that was, for all
intents and purposes, identical even to the typeface on the front page
of their submission. Does that show that perhaps some people were prepared
either not to put the effort into putting in their submission or that
they did not investigate it properly enough themselves?" [4]
The ANF, the AMWU and the CFMEU are all examples of this, having each
appeared on six separate occasions and the ALMHWU on five occasions
and the AWU on four occasions. Opposition Labor Senators failed recognise
that simply repeating a point over and over in no way adds to its validity.
Many of the union's submissions failed to address any of the particular
Terms of Reference but expressed complaint simply with particular provisions
of the Workplace Relations and Other Legislation Amendment Bill
they disliked. Many of these submissions were either deliberately misleading
or the result of failing to properly read the provisions of the Workplace
Relations and Other Legislation Amendment Bill.
A common example of this arose in respect of the Workplace Relations
and Other Legislation Amendment Bill's right of entry provisions.
Many Unions alleged that the Workplace Relations and Other Legislation
Amendment Bill would require unions to identify to an employer,
the names of union members that had invited the union to the premises
in order for the union to gain entry. These submissions refused to acknowledge
the safe guard of union members' identify, if desired, contained within
Section 291A of the Workplace Relations and Other Legislation
Amendment Bill.
The Committee's task was not helped by the fact that a number of the
submissions made by individual academics must be discounted because
of questions raised about their academic independence. For example,
with regard to Mr Timo, Lecturer in Industrial Relations and Enterprise
Bargaining, Griffith University when questioned by Senator Ferguson
the Acting Chair:
Acting Chair - But it is also interesting to note that your
submission, including the order of the Table of Contents and the major
headings, the introduction, the impact of the Workplace Relations
and Other Legislation Amendment Bill and the part on the paid
rates award, is also nearly identical to the other two submissions.
Mr Timo - It is certainly based on - my covering letter says
that I augmented some of the points made by the AWU. I cannot comment
on the TLC submission. I could not tell you about that. There are
some areas in the AWU submission which I wanted to augment because
I felt it was important to keep a certain consistency.
Acting Chair - It is more than augmented, because you actually
go over exactly the same ground?”[5]
Submissions by other academics are questionable for other reasons,
for instance, Mr Tony Short, Senior Lecturer in Law, University of
Adelaide, acknowledged that he had not read the Workplace Relations
and Other Legislation Amendment Bill:
Senator Crane - You have given us a rundown of your views
on the New Zealand situation. I do not recall you having mentioned
the Bill before us once during what you have said, but you may have
done. Have you read this particular Bill?
Mr T Short - I have not read the Bill in its entirety, no.
I explained initially that I had only been back in the country for
a couple of days when I heard that this Inquiry was on. So I fired
this material off at that stage without having read the Bill in any
detail -- only synopses of it.
Senator Crane - So you are not in a position to make an assessment
as to whether or not this Bill is anything like the system that exists
in New Zealand?” [6]
Submissions made by other individuals must be viewed in the context
of their activities, for instance Ms Theresa Conrow, the Associate
Editor of the Labour Research Review in the United States indicated
her background was:
I have been working with unions in Canada, New Zealand, Geneva and
the United States on organising workers in the global economic environment
and I have been speaking with workers in Australia for the last month
and a half.
Broadly, the submissions against the Workplace Relations and Other
Legislation Amendment Bill from unions and union supporters can
be characterised as adopting an ideologically based position in opposition
to the Government's industrial relations policy. Consequently these
submissions reject the Workplace Relations and Other Legislation
Amendment Bill across the board on principle and not on the merits
of its provisions without attempting to provide any constructive comment.
Evidence was provided by individual employees concerning their workplace
experiences. All of this evidence involves complaint under the existing
Federal or State legislative systems some of this from fifteen years
ago. Often the complaints were matters that could properly be pursued
by the employee or a union or the respective Government agency on their
behalf as a breach of existing legislation or award provisions.
Unions sought to portray these complaints as being evidence of problems
with this Workplace Relations and Other Legislation Amendment Bill.
Whilst this proposition is illogical, it is also indefensible for unions
to list out the complaints these employees have with existing industrial
relations systems and for those unions to then support the same legislation
as though it is without fault.
This evidence genuinely provided by these employees, therefore did
little to assist the Committee review the Workplace Relations and
Other Legislation Amendment Bill.
The Committee received 1,328 written submissions. The vast majority
of these approximately 1036, or 74% of all the submissions,
were single page statements by individual employees. In the context
of a total union membership of 2.3 million employees this is less than
six in 1,000 - or, in the total overview, is less than 2 for every 1,000
employees - who, in effect, were encouraged to make submissions. It
is fair to say that the vast majority of these were expressions of general
concern and characteristically lacked explanation of the basis for concern
and often demonstrated a lack of understanding of the provisions of
the Workplace Relations and Other Legislation Amendment Bill.
A selection of examples of this is as follows:
My concern is that the current conditions and award rates will no longer
apply and that every individual would be involved in a workplace agreement.
[7]
Many of the provisions important to women, including ... paid maternity
leave will no longer be included in awards according to the proposed Bill.
[8]
Unions under the legislation will only be able to take part in negotiating
an agreement when they are invited by both workers and employers. [9]
Where is the fairness of a system that pays some people to be professional
negotiators (and get the best deal for the boss) who can if you don't
like it withdraw their offer of work, while those they are negotiating
with, experts at their job but not negotiating cannot withdraw all they
have, their labour or they will end up in prison. [10]
Under the proposed system a union would not be able to visit a workplace
to check things such as time and wage records. In fact they won't
be able to visit or inspect anything unless there is a written invitation
from at least two union members. This would alert employers as to
who was in the union.
Note: This quote appeared in more than one submission. [11]
I feel that many workers will be disadvantaged by ... no protection from
unfair dismissal. [12]
The replacement of the IRC with an employee advocate. [13]
On a simplistic numerical assessment a majority of submissions made
to the Committee expressed negative views about some of the provisions.
It is not reasonable however to accept a two-paragraph proforma complaint
about the Workplace Relations and Other Legislation Amendment Bill
from one individual as having equivalent weight to a written submission
fully researched and comprehensively argued on behalf of thousands of
employers in favour of the Workplace Relations and Other Legislation
Amendment Bill.
Given the total number of Australian employees and the very low attendance
at the hearings there clearly is little real concern over the Workplace
Relations and Other Legislation Amendment Bill amongst the wider
workforce. The number of submissions does not reflect any spontaneous
concern amongst employees but rather, a response to the ACTU direction
to union members.
The bulk of individual submissions reflected the ACTU's political orchestration
of opposition to the Workplace Relations and Other Legislation Amendment
Bill rather than any representative expressions of employee concern.
Further, the Opposition Senators overlooked the fact that a number
of Federal and State unions not affiliated with the ACTU did not make
submissions.
Opposition Senators' report observed that employers made comparatively
few appearances before the Committee. Given the political nature of
the inquiry this is not surprising. Generally, supporters of legislation
are less motivated to participate in such inquiries compared to opponents
of legislation. This was evident in the November 1993 Inquiry into
the Industrial Relations Reform Bill 1993 when the ACTU, supporting
that Bill, made the only union submission to the Senate Committee and
represented all employees throughout Australia. In contrast, at both
the 1993 and 1996 Senate inquiry hearings dealing with industrial relations,
the Employer groups which gave evidence are almost identical and covered
a wide range and type of employers.
In the body of the Government Senators' report we will detail our views
with relevant evidence from various submissions.
In summary, having considered the written submissions and the evidence
given during public hearings there is clear community support for the
Workplace Relations and Other Legislation Amendment Bill, 1996.
We recommend the Senate pass without amendment the Workplace
Relations and Other Legislation Amendment Bill as a matter
of priority in the interests of current employees, prospective employees,
the unemployed, employers and the wider Australian community.
Footnotes
[1] Evidence pp 1579-1584
[2] Evidence pp 1577
[3] Evidence pp 2070
[4] Evidence pp 2072
[5] Evidence pp 1085
[6] Evidence pp 1859
[7] Submission 1297, Vol. 19, pp 5406
[8] Submission 900, vol. 11, pp 3259
[9] Submission 1075, Vol. 15, pp 4340
[10] Submission 1158, Vol. 16, pp 4731
[11] Submission 1154, Vol. 16, pp 4711 and
Submission 1183, Vol. 17, pp 4855
[12] Submission 910, Vol. 12, pp 3468
[13] Submission 1296, Vol. 19, pp 5402
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