Opposition Senators' report
2.1
The Department of Employment and Workplace Relations
(DEWR) claimed in evidence before the Committee that the Right of Entry Bill
2004 has two main goals. First, to enhance the federal right of entry regime to
provide a better balance between the right of unions to represent their members
in the workplace and the right of employers to conduct their businesses without
undue interference or harassment; and second, to simplify the current system by
providing as far as possible for a single right of entry scheme to apply to all
workplaces.[13] These objectives,
according to DEWR, fulfil the Government's election promise to legislate to
tighten up existing right of entry laws; specifically to protect businesses
against union entry to the workplace for improper purposes and to exclude the
operation of state right of entry laws where federal right of entry laws also
apply.[14]
2.2
Notwithstanding the Government's stated objectives,
Opposition senators are concerned that the intention and practical effect of
this bill will make it harder for employees to join a union and participate in legitimate
union activities. Evidence before the committee in written submissions and at
the public hearing demonstrated that the bill places unreasonable impediments on
the rights of union officials by further restricting the grounds for entry, the
number of workplace visits, the location of meeting places and the route that a
union official can take to access a meeting place. Opposition senators agree
with the assessment of the Australian Rail, Tram and Bus Industry Union (RTBU) that
the provisions of the bill 'establish a kind of labyrinthine structure of
bureaucracy and regulation to undermine the capacity of a union to simply speak
to his or her members, and vice versa'.[15]
2.3
The claim made by both Minister Andrews
and DEWR that the bill strikes a balance between the rights of unions and the
rights of employers does not wash with unions and Opposition senators, for
reasons which will be made clear in this dissenting report. The bill is not a
thoughtful or sensible approach to regulating the contemporary labour market,
nor is evidence before the committee from industry bodies and DEWR in support
of the bill convincing in any shape or form. Put simply, Opposition senators can
not see any justification for the bill on policy or legal grounds and therefore
believe it should be rejected by the Senate.
Right of Entry Bill lacks a clear and
coherent policy framework
2.4
Submissions from unions and state governments pointed
to the lack of any policy justification for the bill and the absence of any serious
workplace problems which employers or unions have identified that would explain
why the draconian measures being proposed are necessary. The RTBU's submission,
for example, stated:
There is no objective or evidentiary basis for the provisions of
this Bill. Nowhere does the...Government move
beyond the realm of rhetoric and provide some rational basis for its
provisions. The reference in the [Minister's] second reading speech to balancing
the rights between unions and business with respect to right of entry can only
be made on the basis of a skewed vision of the term 'balance'.[16]
2.5
Arguably the strongest representation on this issue was
made by the New South Wales Government submission. It expressed the view that:
Broadly speaking, no policy rationale demonstrating that changes
to right of entry legislation are required is provided, let alone the
compelling, wide-ranging case that changes on the scale proposed would seem to
dictate.
...
[T]here seems to be no support for claiming that union entry to
workplaces is inappropriate, intrusive or disruptive to an extent sufficient to
warrant legislating across the length and breadth of all Australian
jurisdictions.[17]
2.6
The Queensland Government submission captured a view which
was also expressed by most other union submissions: 'Contrary to accepted
practices of government policy implementation, there is no attempt in any of
the...Government's documentation supporting the Bill
to explain why such significant changes are necessary'.[18]
2.7
The Queensland
and New South Wales Government submissions also rejected the assertion by the minister
and DEWR that a single statutory scheme applying across Australia
is necessary to remove confusion about the rights and responsibilities of
unions and importantly to prevent unions from exploiting their statutory rights
to enter the workplace. As will become clear later in this report, it seems
that such confusion and exploitation are seldom encountered by employers who in
the main value their good relations with union officials which have been established
over time. The Opposition believes that the Government's argument for uniform
right of entry laws arises because it does not agree with recent court and
tribunal decisions on right of entry disputes. This bill is the latest example
of the Government legislating to override decisions of the Federal Court and
the Australian Industrial Relations Commission (AIRC) with which it does not
agree. The Opposition does not believe this is a sound basis for legislative
change.
2.8
The concerns held by Government and business which DEWR
claimed underpin this bill, are not reflected in how right of entry laws are currently
being practiced in workplaces across the country. Evidence before the committee
from various unions demonstrated that the relatively uniform state right of
entry laws work effectively and have done so for some time. This was
acknowledged by Government senators at the public hearing who speculated that
the bill is designed to address a small number of union officials representing
one or two unions who have abused the system, rather than penalise the majority
of unions who exercise their statutory rights responsibly and lawfully.[19]
2.9
According to the 2003–04 Industrial Registry annual report,
between 2001 and 2004 some 1884 permits were issued of which only 15 were
revoked, which represents a very small proportion of the total number of
permits in circulation.[20] The RTBU told
the committee that since 1996 there has been only one application by an
employer for the permits of two RTBU officers to be revoked. On that occasion,
the Industrial Registrar declined to revoke the permits.[21] Evidence from other unions also
pointed to very few examples of entry permits being revoked.
2.10
State right of entry laws provide a sensible and
flexible regulatory environment which has all but eliminated the need for
employers, employees and their union representatives to initiate industrial action
over right of entry disputes. Opposition senators note that right of entry
disputes are at historically low levels. Contrary to claims by the Government
and DEWR, which were not supported with any evidence, the right of entry issue
does not currently appear on any radar of national industrial issues of major concern
to employers. ACTU President, Ms Sharan
Burrow, told the committee at the public
hearing that she could not recall one occasion where peak employer bodies had
raised the right of entry issue with the ACTU, either formally or informally.[22]
2.11
The Government's so-called policy justification for the
bill amounts to unfounded paranoia about fictitious unions flouting the law and
exploiting, or potentially exploiting, vulnerable employers by pressuring and
harassing employees at their workplace. Apart from isolated cases in one or two
industries, there is no evidence to back up this proposition. Opposition
senators find descriptions by the Government and industry bodies of alleged 'unscrupulous'
or 'noxious' union behaviour at the workplace offensive and ridiculous. Opposition
senators reject the proposition put to the committee by DEWR that the bill is
necessary to circumvent unions which are in the habit of conducting 'fishing
expeditions' at workplaces under the guise of investigating an employer's
suspected breach of industrial instruments.[23]
The submission by DEWR only referred to 'anecdotal evidence' which could not be
substantiated. Opposition senators note that the Commission already has the
power to investigate whether there is a genuine suspected breach or whether entry
to a workplace is for the purpose of conducting so-called fishing expeditions.
This was clearly spelt out in Senior Deputy President Polites' decision in BHP Billiton Iron Ore Pty Ltd and William Warren
Tracey:
If it became apparent that the right of entry provisions were
simply being used as a "fishing expedition" or for an ulterior
purpose, then the Commission would have the power to place additional limits on
the exercise of this power.[24]
2.12
Not only does the bill lack any coherent and cogent
policy framework, the committee heard evidence from unions and the New South
Wales Government that it is inconsistent with one of the principal objects of
the Workplace Relations Act as set out in section 3; that is, matters effecting
the employment relationship between employers and employees are to be addressed
as far as possible at the workplace level by the relevant industrial parties. Opposition
senators accept the view that many provisions of the bill undermine the ability
of parties to explore mutually acceptable outcomes. The submission from the
National Union of Workers pointed out in its submissions that while the right
of entry provision in workplace agreements is consistent with the Act, the proposed
bill is contrary to workplace bargaining, '...in that it seeks to restrict the
rights of the industrial parties...in relation to what they can agree to include
in an agreement'.[25]
DEWR and employer groups are out of touch with the modern workplace
2.13
Opposition senators stress that submissions from
employer groups and DEWR provided no empirical evidence for the measures
contained in the bill. Like the rhetorical flourishes of the minister's second
reading speech, their claims regarding the basis for change are entirely
without foundation. Most of the claims appear to have originated as figments of
the minister's imagination. Special mention is reserved for so-called evidence before
the committee from the Australian Chamber of Commerce and Industry (ACCI). At a
public hearing, Mr Christopher
Harris, Senior
Workplace Relations Adviser, was unable to
elaborate on the extent to which right of entry provisions are subject to
abuse. Assertions of abuse were based on anecdotal evidence from ACCI
constituent members, but the committee was not informed of any cases or
independent research which would point to widespread abuse.
2.14
Opposition senators note that ACCI's evidence before
the committee is contemptuous towards unions and freedom of association
principles. ACCI claimed that right of entry should only exist where employees
choose to be represented by trade unions in respect of a particular workplace
matter and that this approach is consistent with principles of association.
Opposition senators reject this position outright. The ACTU pointed out in its
submission that union right of entry is fundamental because:
...it fosters employee representation and participation at the
workplace. In particular right of entry for the purpose of discussion and as an
adjunct to bargaining fosters employee involvement in and commitment to
enterprises, which is associated with improved loyalty, worker morale, lower
turnover and better enterprise performance.[26]
2.15
Another example of ACCI's dismissive approach is its resigned
acceptance of right of entry laws on the grounds that right of entry should be
recognised as 'legalised sanctioned trespass' and 'restricted to the maximum
extent possible' in line with the move away from an awards-based system to one
characterised by agreement-making at the workplace level. Yet, later in its
submission ACCI claimed that employers do not oppose the legitimate and proper
role that trade union officers and employees have in the representation of
their members. Opposition senators are unable to take ACCI at its word. The
difficulty for Opposition senators is that ACCI's implied definition of
'legitimate' and 'proper' is completely at odds with the right of workers to
have access to their union representatives and their freedom to organise
collectively at the workplace level.
2.16
At a public hearing, Mr
Christopher Harris
questioned whether it was necessary for unions to have face-to-face contact with
employees in workplaces when recruitment activities could be pursued off-site
with the assistance of modern telecommunications and the electronic media. The
ACTU, RTBU and the Textile Clothing and Footwear Union of Australia (TCFU) dismissed
the suggestion as being completely out of touch with the realities of the
modern workforce, where only a small percentage of employees have access to
email and the internet in the workplace and at home. The ACTU, for example, expressed
the view:
If you think about the workplaces in this country, English is
still the predominant language but there is a multitude of languages. There is
a multitude of work practices, from factory floor to hospital to call centre,
all in some sort of hierarchy. Common sense dictates that the change suggested
[by ACCI] is an improbable reality.[27]
2.17
The TCFU's Victorian State Secretary, Ms
Michele O'Neil,
also drew the committee's attention to the reality facing home workers and
outworkers in the clothing, textile and footwear industries. Responding to the
suggestion that technological advancement had eliminated the need for face-to-face
contact with unions at the workplace, Ms
O'Neil responded:
It is not the world I live in. My members by and large do not
have access to the internet. They definitely do not have access to the internet
in their workplaces. Some would fit demographically into the lowest portion of
the Australian community in terms of having internet access at home.[28]
2.18
Like ACCI, the workplace relations department's
submission showed a blind allegiance to the Government's ideologically
aggressive workplace relations agenda and, like the submissions from industry
groups, a habit of presenting claims and accusations as fact without taking the
trouble to attempt to substantiate them. Opposition senators find that the
evidence in DEWR's submission is not grounded in any real life experience of
employees and their union representatives at the workplace level. The submission
from DEWR reflected an attitude towards employees and unions which is out of
touch with the needs and expectations of the modern Australian workforce.
2.19
One example is DEWR's claim that current right of entry
provisions 'lack sufficiently robust and flexible measures to properly
safeguard against abuse of the permit system'.[29]
This view is completely at odds with how unions and state governments described
the current operation of state right of entry laws at the public hearing.
Again, the department did not provide a shred of evidence to back up its claim,
and unions were quick to reject it. Opposition senators are left in no doubt
that permit holders overwhelmingly exercise their statutory rights lawfully and
responsibly. Over recent years, those few right of entry disputes which have
been before the Federal Court have invariably been resolved in favour of the
union involved.
Right of Entry Bill contravenes Australia's
International obligations
2.20
Opposition senators agree with union claims that unions
are party principal to awards and to most certified agreements, which means their
role extends beyond merely representing members to include entering premises
for the purpose of inspecting wage records and other documents, to interview
employees in order to investigate any suspected breaches and to ensure
enforcement of awards and agreements.[30]
What AACI, and the department for that matter, fail to realise in their written
submissions is that these union rights are enshrined in ILO conventions 87 and
89 relating to freedom of association.
2.21
The committee received a detailed submission from the
International Centre for Trade Union Rights (ICTUR) which expressed major
concerns about the impact of the proposed legislation on Australia's
international obligations.[31] Similar
concerns about how the WR Act contravenes ILO Conventions on freedom of
association and the right to collective bargaining had been raised with the
committee by ICTUR on at least five previous occasions over the past decade. This
latest submission from ICTUR argues persuasively that the Right of Entry Bill,
if enacted, will worsen Australia's
breach of ILO standards, which have been voluntarily accepted, and exacerbate
an apparent lack of respect for the rule of international law, in at least two
ways:
- The proposal that certified agreements not
contain any provisions which relate to union right of entry represents a
severe, unnecessary and impermissible restriction on collective bargaining
which is contrary to the principles of freedom of association and the rights
guaranteed by Article 3 of ILO Convention 98.
- Union access to workplaces will be restricted in
ways which will further impair workers' freedom of association and the right to
organise, undermine right of entry as a way of ensuring compliance with
industrial instruments, and prevent unions from monitoring compliance with
industrial instruments and organising and recruiting new members.[32]
2.22
It is noteworthy that these concerns are raised in a
number of other union submissions. Opposition senators also note the ACTU's
argument that the bill's restrictions on union right of entry contravene
established freedom of association principles under ILO Conventions also by
conferring upon employers an implied right to oversee the interaction between
employees and unions.[33]
2.23
It is for these reasons that Opposition senators dismiss
the Government's attempt, as described by DEWR, to re-define unions simply as
'membership-based service organisations',[34]
so as to limit the scope of legitimate union activity at the workplace level.
There is no doubt that the provisions of the bill are so restrictive as to make
it difficult for unions to exercise their right of entry. It is disingenuous on
the one hand for ACCI to claim that it recognises State and Commonwealth right of
entry laws while on the other hand supporting proposed legislation which will
deny unions any real opportunity to exercise their rights under both Australian
and international labour laws.
A single statutory scheme for right of entry is not required
2.24
The bill seeks to exclude state industrial laws and
industrial instruments for union entry to workplaces where the employer is a
'constitutional corporation' or the premises are in a territory or Commonwealth
place. According to DEWR, state unions will not be precluded from entering an
employer's premises for purposes relating to state industrial laws.
2.25
There was speculation at the public hearing about the principle
behind the Government's proposal that a single scheme for right of entry
replace the different regulatory schemes under Commonwealth and state
industrial laws and instruments. However, Opposition senators are not convinced
that the provisions of this bill relating to a single statutory scheme will
result in a harmonised industrial relations system, as claimed by the
Government and DEWR. The concerns of a number of witnesses were summarised at
the public hearing by the ACTU:
If the government was talking about a harmonised industrial
relations system or an end to confusion, they could...seek to sit down with state
ministers and state governments and work out by agreement a range of provisions
that were equal, whether they were in a state of federal. The nature of this
bill is arrogant in that it seeks to override state entitlements with no such
commitment to a harmonised environment and would leave at least 15 per cent of
employees on a very different set of arrangements.[35]
2.26
The committee heard evidence from various unions that
current state right of entry laws are working effectively and the level of
confusion and uncertainty from the current regulatory overlap has been kept to
a minimum. The committee also heard that any attempt to impose upon the states
a single statutory scheme for right of entry will create more problems and
confusion for employers and employees. The ACTU told the committee that the
bill is a recipe for confusion because it replaces simple, well understood
state laws with a highly restrictive federal scheme, while retaining different
laws for small businesses that are not incorporated entities.[36] A single statutory scheme is therefore
not required.
2.27
State governments were also critical of this
unwarranted intrusion into areas of state jurisdiction, highlighting the lack
of any consultation and signalling to the committee the possibility of future legal
challenges over the bill's constitutionality. The Queensland Government
submission took strong exception to the Government's attempt to impose a
unitary system of industrial relations which ignores the laws, processes and
policy positions of the states.[37]
2.28
There was general agreement among the union submissions
that the government has invented an argument about the need for uniformity
because, as previously mentioned, it does not agree with certain decisions of
the Federal Court and the AIRC. Opposition senators believe that the
Government's latest attempt to legislate to overturn AIRC decisions with which
it does not agree is not a sound basis for legislative reform. It further
undermines the role of the Commission and erodes public confidence in both the
Commission and the industrial relations system as a whole. Opposition senators also
note the view of the RTBU that the Government is motivated to override state
right of entry laws because state laws are seen to be more employee friendly
than Commonwealth laws.
Why the Right of Entry Bill should be
rejected
2.29
The ACTU submission provided a detailed critique of
each of the main provisions of the bill. These criticisms are fully supported,
and in some instances reinforced, by submissions from other unions. Strong
representations to the committee were made from the Finance Sector Union of
Australia (FSU), the RTBU, the Liquor, Hospitality and Miscellaneous Union
(LHMU), the National Union of Workers (NUW) and the Media, Entertainment and
Arts Alliance (Alliance). Each of
these unions provided evidence to show that the bill will have an adverse
impact on workers across a range of industries. The concerns voiced by unions
relate to the main provisions of the bill regarding how entry permits are
issued, when entry permits may be used, how permit holders may exercise their
right to enter premises, and the expiry, revocation and suspension of entry
permits.
2.30
The committee heard compelling evidence from the TCFU
about the likely adverse effect of the bill on home workers and outworkers in
the clothing industry. The TCFU argued at the public hearing that while there are
good reasons to oppose the bill in its entirety, an alternative to outright
opposition would be to amend the bill to preserve outworker rights under Commonwealth
and state jurisdictions. An amendment of this kind would enable existing
provisions under the Federal Clothing Trades Award, the Victorian Outworkers
Act and the Workplace Relations Act to continue.[38]
2.31
According to the TCFU, the protection provided to
outworkers under existing state and Commonwealth legislation is critically
important, especially in relation to contracting out of work and the
transparency of the contracting chain within the clothing industry. The
committee heard evidence from Ms Michele
O'Neill, TCFU's Victorian State Secretary,
that the bill in its current form will have a disproportionate effect on the
clothing industry's most vulnerable workers, including migrant workers for whom
English is not a first language and the disproportionately large number of
women who fill the majority of casual positions. The bill is most likely to
effect those workplaces in the textile and clothing industries '...where workers
are most vulnerable, most fearful, most likely to be cautious of having their union
membership exposed to their employer and most likely to be already in an
exploitative or unfair situation...'.[39]
Opposition senators, in agreeing that the bill ignores the unique situation of
some of the most vulnerable workers in the community, support in principle any
amendment that gives continuing effect to provisions of state and Commonwealth
legislation that deal with the unique situation of workers in the textile and
clothing industries.
2.32
The Government believes that because right of entry
permits confer significant rights on union officials, they should only be
issued to 'fit and proper persons' who understand their rights and obligations.
Accordingly, the bill identifies a number of matters that the Registrar must
take into account before issuing a permit, to determine whether a union
official meets the 'fit and proper person' test. These matters include whether
the union official has received appropriate training about their rights and
responsibilities as a permit holder, been convicted of an offence against an
industrial law, or held a permit under the WR Act or under a state industrial
law that has been revoked or suspended.[40]
Evidence before the committee from various unions demonstrated that the 'fit
and proper person' test is unnecessary and would most likely increase the
workload of the Registrar with no improvement to the right of entry regime.
2.33
The main objections to the bill raised by unions relate
to the bill's restrictions on the use of entry permits. Specifically, the proposed
amendments place the onus on the official seeking entry to demonstrate any reasonable
grounds for suspecting a breach, and require the permit holder to particularise
any suspected breach. Further restrictions only allow permit holders to inspect
records of employees who are members of the permit holders' union, and to enter
premises for the purpose of recruitment only every six months.
2.34
The committee heard evidence that the proposed
restrictions on the use of entry permits are both unnecessary and unworkable,
especially the burden of proof provision and the restriction placed on union
visits for the purpose of recruitment. The FSU clearly demonstrated the
ridiculous nature of the requirement for unions to show evidence of a suspected
breach before being granted access to gather evidence of an actual breach. It
was claimed by FSU that this will only result in a '...circular situation that
would effectively negate the right of entry as an investigative tool'. The FSU
illustrated the flaw with the proposal when it told the committee:
One of the principal reasons for conducting an investigation is
to substantiate a suspicion. Suspected breaches are often based on verbal
advice from members who do not wish to be identified by putting their concerns
in writing or from documents that have been supplied confidentially. It appears
unlikely that either type of evidence would be considered 'reasonable grounds'
under the proposed provisions unless the confidentiality of members or
whistleblowers was breached.[41]
2.35
The general point made by the FSU and other unions is
worth repeating: there is no evidence of widespread entry to workplaces
resulting in non-union members suffering unfair pressure and harassment to
justify the six-monthly visitation provision, as alleged by the minister in his
second reading speech. The National Union of Workers voiced strong opposition
to this provision, noting the absence of any cogent reason for specifying only two
visits per year:
With many employers having large disparate workplaces, shift
work arrangements in place, or a high level of casual workers, more than two
visits per year are required just to make contact with all employees. The
practical reality is that it usually takes more than two visits per year to a
workplace in order to recruit and organise workers and to ascertain what issues
are present at the workplace.[42]
2.36
Opposition senators accept that many workplaces covered
by various unions have part-time employees and shift workers, making it almost
impossible for permit holders to see all employees in one visit. Restricting
recruitment visits to every six months will ensure that a large number of
employees never see a union official.
2.37
Evidence before the committee from the Alliance
and the LHMU highlighted how this bill assumes a workforce comprising full-time
and permanent employees. Opposition senators note that this is no longer the
reality for an increasing number of workers. This is particularly the case for
members of the Alliance and the
LHMU '...who work part time, who work shiftwork, who are employed as casual or
fixed term, who work in large workplaces or move around to different
workplaces'.[43] The LHMU told the
committee that many of its members are amongst the most vulnerable in the
Australian workforce, including from non English speaking backgrounds.[44] The Alliance stressed in its
submission that the provisions of the bill assume a relatively stable workforce
which is not a characteristic of the media and entertainment industries or, for
that matter, a range of other industries: 'For instance, in a theatre venue,
the technicians and cast might be completely different even as often as every
two months. Other sectors are even more volatile'.
2.38
Opposition senators refer in particular to the Alliance
submission's conclusion:
As employment arrangements in Australia
continue to change, as permanent part-time, freelance, and casual employment
increase and as reliance on labour hire companies increases, the challenges
that the Alliance has confronted
for a century will become increasingly common across other industries.[45]
2.39
The bill requires that the permit holder must comply
with any reasonable requests from the employer regarding occupational health
and safety requirements, the venue for discussions between the union and
employees, and the route to be taken to reach the venue where staff discussions
are to be held. DEWR justified this provision on the grounds that it strikes
and 'appropriate balance' between the right of permit holders to enter premises
and the right of employers to conduct business without unnecessary disruption.
Opposition senators do not accept this argument. It is clear the provision is
aimed at reversing a recent decision of the Commission in favour of the FSU
following a protracted dispute with the ANZ Bank regarding the location of
interviews. The FSU told the committee that while the existing laws can be used
to frustrate union access by employers, the framework proposed in the bill
would be even more restrictive. For instance, it could be used to frustrate
legitimate union access to workplaces and facilitate breaches of the law, awards
and agreements.
2.40
The general conclusion of unions is that the proposed
provision will be open to abuse and make it practically impossible for
employees in many industries to see a union official. Opposition senators agree
with the FSU's position that the process described in the bill fails to
understand the realities of the workplace and could deprive employees their
right to freedom of association as well as their confidentiality.[46]
2.41
Currently, the only means of addressing improper
behaviour is through revocation of a permit. The bill allows for some or all permits
that have been issued to a union to be either suspended or made subject to
limiting conditions for a period which the bill does not specify. Contrary to
the assertion by DEWR that these alternatives 'provide scope to address less
serious examples of improper behaviour', Opposition senators accept the view
put to the committee by the FSU, and endorsed by other unions, that the
proposal is:
...a potentially draconian power that could punish and
inconvenience numerous union employees who have done nothing wrong, jeopardise
ongoing legitimate investigations, and consequently punish and disadvantage
employees...[47]
2.42
Opposition senators can not see any merit in a provision
which penalises an entire union for the behaviour of a few of its members. To
take away the rights of a union based on isolated cases in one or two states is
nonsensical. National Secretary of the FSU, Mr
Paul Schroder,
made the analogy when he told the committee: 'I have not heard anyone in the
parliament say that a banking licence should be revoked because a dodgy loan
was written. It is a nonsense'.[48]
Concluding comments
2.43
Opposition senators are opposed to this bill on the
grounds that it lacks any clear and cogent policy framework and is based on claims
about unions exploiting a 'complex regulatory web' of state right of entry laws
for which there is no compelling evidence. Opposition senators note that union
officials enter thousands of workplaces across Australia
every day. Most of these visits occur without incident and as a result of
cooperation between the union and the employer. The rare exceptions which give
rise to a dispute are able to be resolved under existing law.
2.44
Contrary to the stated purpose of the bill, the effect
of its provisions will be to further concentrate power in the hands of
employers to the detriment of workers across a range of industries. This is
particularly the case for outworkers in textile and clothing industries. The overwhelming
response from unions is that the bill in its current form will further inhibit
legitimate union activities and rights in the workplace, exacerbate the current
power imbalance between employers and employees and increase the capacity of
employers to act unlawfully and with impunity.[49]
2.45
At the public hearing, officers from DEWR told the
committee that although the Government could see no justification for delaying
the introduction of the bill, it was not unwilling to consider possible amendments,
as long as they were 'appropriate'. Three issues under consideration of possible
amendment include the limitation on a permit holder being able to engage in
recruitment conduct once every six months, maintenance of the existing rights
of union officials to enter premises pursuant to the Victorian Outworkers Act
(2003), and the requirement that notice of entry must be provided during
working hours.[50] The department also
appeared to be receptive to the view that the bill be amended to enable
provisions for right of entry to be included in certified agreements, as long
as parameters are placed around the terms of any provisions to enable the
Commission to properly regulate workplace agreements.[51]
2.46
Opposition senators welcome these positive overtures
from the Government and believe that amendments to the bill which address the
concerns of the Opposition and unions will drastically improve this legislation.
However, Opposition senators are puzzled by the minister's decisions to consider
amendments to certain 'appropriate' provisions of the bill before the committee
has reported its findings to the Senate. It is all well and good for the
minister to decide which issues are 'appropriate' based on the written
submissions to the inquiry. If the Government was genuinely concerned with
improving this legislation and was respectful of the processes of a Senate
committee inquiry, it would have announced its intention with regard to
amendments after the committee had tabled its report and any findings and
recommendations had been debated in the Senate. Be that as it may, while Opposition
senators are supportive of possible amendments in areas flagged by the
department at the public hearing, this does not alter the fact that the
Opposition finds the bill to be fundamentally flawed on policy and ethical
grounds.
2.47
Opposition senators are extremely concerned that the bill
fundamentally undermines a number of rights and principles which are entrenched
in domestic and international law. The right of unions to properly investigate
suspected breaches of awards, agreements and other legislative protections; the
right of union representatives to visit workplaces and organise members and
potential members; and the right of workers to take part in these discussions
without fear of reprisal will be seriously compromised by this legislation,
even if the Government was to proceed with amendments.[52]
2.48
Evidence from employer groups and DEWR disregarded the
established principle that union right of entry is a vital corollary to the
right of employees to join unions and be represented by them in the workplace. The
committee heard evidence from unions that the culturally and legally accepted
and understood role of union organisers in Australia
is seriously threatened by the provisions of this bill. The FSU in particular
expressed the view that there is no recognition in the bill of the positive
role that unions play in the workplace. In fact, the bill discourages unions
from contributing to workplace democracy by attempting to make them invisible.
2.49
Opposition senators are in no doubt that the right of
entry provisions introduced with WR Act (1996) are sufficiently restrictive,
making it difficult for unions to easily operate within the spirit of the law.
Contrary to ACCI's claim that the bill is largely remedial and focused only on
moderate amendments, any further unreasonable and unnecessary restrictions on
the fundamental right of unions to enter workplaces in order to represent the
industrial interests of their members or potential members would be totally unacceptable.
2.50
Opposition senators are disturbed to find that the
provisions of the bill are inconsistent with the stated objectives of the WR
Act and are contrary to Australia's
obligations under ILO conventions and international labour laws. Any further
erosion of Australia's
observance of ILO conventions would be regrettable and should be opposed.
Recommendation
Opposition senators recommend to the Senate that the bill be rejected.
Senator Gavin
Marshall
Deputy Chair