Preface
Reference to the committee
On 12 October 2005,
the Senate resolved that upon the introduction of the Workplace Relations
Amendment (Work Choices) Bill 2005 in the House of Representatives, the
provisions of the bill be referred to this committee for inquiry and report by 22 November 2005. The bill was
introduced in the House of Representatives by the Minister for Employment and
Workplace Relations, the Hon. Kevin Andrews MP, on 2 November 2005.
The motion for referral stated that the inquiry would not
consider those elements of the bill which reflect government bills previously
referred to, examined and reported on by the committee; namely those elements
which relate to secret ballots, suspension or termination of a bargaining
period; pattern bargaining; cooling off periods; remedies for unprotected
industrial action; removal of section 166A of the Workplace Relations Act 1996
(the WR Act); strike pay; reform of unfair dismissal arrangements; right of
entry; award simplification; freedom of association; amendments to section 299
of the WR Act; and civil penalties for officers of organisations regarding
breaches.
Conduct of the inquiry
The committee received 202 major submissions, a full list of
which is at Appendix 1. In addition, some 5400 brief submissions were received
as expressions of interest. For the reason of the large number of submissions
and the short time frame for the inquiry, the committee was unable to
individually acknowledge all submissions, most of which were orchestrated by
way of an Australian Council of Trade Unions (ACTU) ‘spam’ pro forma widely
advertised in workplaces and beyond. The committee thanks all those who made
submissions. Five public hearings were held in Canberra
between 14 and 18 November 2005.
A list of the 105 witnesses who
appeared at these hearings is at Appendix 2.
The conduct of hearings for this inquiry has been the
subject of dissension and criticism from opponents of the bill. The committee
determined that the best way to use the time available was to conduct five days
of hearings in Canberra. During the
course of the hearings, committee members had the opportunity to hear from a
diverse and balanced group of witnesses, representing more than thirty
organisations with a range of interests and views. As noted above, close to
five thousand written submissions have been received by the committee. It is
difficult to see how the committee's
deliberations could have been better informed.
When referring this bill
to the committee, the Senate resolved that the committee should direct itself
to examining those issues which have not previously been the subject of
inquiry. Although this would appear to be a matter of common sense and
efficiency, it also drew criticism. It would seem that opponents of the bill,
hoping to delay introduction of the reforms for as long as possible, would seek
to revisit matters examined by this and the EWRE References committee as
recently as June 2005.[1]
The Government has been
determined to introduce the legislation as soon as possible. The latest
economic data, particularly relating to unemployment and productivity, strongly
indicates the need for expeditious reform. As discussed in detail in chapter 3,
the looming demographic challenge and productivity lag points to an urgent need
for extensive labour market reform. The reforms contained in the bill will play
a crucial role in reversing these trends and paving the way for continued
economic success.
The
Government party senators strongly support the legislation before the
committee. However, following both oral and written
submissions received during the course of the inquiry, the committee would like
the Government to consider the following amendments to the bill:
-
that outworker
provisions in state awards be protected and not be able to be bargained away by
employees entering into federal agreements;
-
that
prohibited content in pre-reform federal agreements and state agreements be
limited to anti-AWA clauses only;
-
that the
90 day notice by an employer to terminate an agreement under the bill only be given
after the nominal expiry date of that agreement;
-
that trainee/apprentice
provisions in federal awards will override state trainee/apprentice laws to the
extent of any inconsistency and traineeships be treated on the same basis as
apprenticeships;
-
that the
averaging of hours provisions in the bill be examined to ensure that there are
no unintended consequences as a result of the operation of these provisions;
-
that a
full time employee who works the hours required of them is guaranteed to
receive 4 weeks annual leave; and
-
that a
full time employee who works the hours required of them is paid for at least 38
hours per week even if the hours required of them average less than 38 hours.
Structure of the report
This report examines the provisions of the Work Choices Bill.
As noted above, the scope of the inquiry excluded those elements of the bill
that had previously been the subject of inquiry and report by this committee.
The report is structured in 4 chapters. Chapter 1 outlines
the policy background to the Work Choices Bill, previous workplace relations
reforms, the reasons why further reform is needed, objectives of the bill and a
description of the bill. Chapter 2 explores the historical context of the
workplace relations system and the constitutional basis for the establishment
of a national system. Chapter 3 analyses in more detail other issues of
contention, while in Chapter 4 the committee majority draws its conclusions
from the evidence.
The political and social context of workplace reform
This report outlines the
reasons why Government party senators support the legislation before the
committee. The details are in the chapters that follow. Some brief comments on
the broader political context, not dealt with in the report proper, may be
noted here. What is often described as an 'evolution' of workplace relations
legislation is a legislative process which has taken place over the course of
the last twelve years. It is often noted that the Keating Labor Government in
the early 1990s grasped the nettle in recognising the connection between
productivity and economic growth on the one hand, and the need for workplace
bargaining, on the other. This was reflected in legislation which provoked some
dispute and recrimination in the Labor Party at the time, especially in the
trade union arm of the party.
In retrospect it is clear
that the Labor Party has not advanced beyond the point at which it stood a
decade ago. Arguably it has regressed. Labor has opposed the Workplace
Relations and Other Legislation Amendments Bill 1996, and has continued to
oppose, most notably in the Senate, most of the amendment bills to the WR Act
which were subsequently introduced. The contrived scaremongering and extreme
language being deployed by the Labor Party in 2005 are uncannily similar to
that which it used to argue against the Government’s initial workplace
relations reforms in 1996.
In 1996 the Leader of the
Opposition, Mr Beazley, argued that:
The Workplace Relations and Other Legislation Amendment Bill
strikes at the heart of the desire by all Australians for a fair as well as a
productive society. If we pass this bill into law, we will return the workplace
to the battleground it used to be....
...the government is attacking the very basis of people’s living
standards... Attack wages, and you attack families.
Another group marked down
for special punishment by this measure is Australian women... the more wages are
removed from the arbitrated system and into the decentralised system the
greater the potential for wage injustice for women. The more the commission is
crippled – it is the best friend that disadvantaged Australians have in
industrial relations – the more this injustice is aggravated.
... the kind of low wage, low productivity industrial wasteland we
see in the United States and New Zealand where jobs can be bought at bargain
basement rates... straight down the American road on industrial relations
legislation, straight down the American road on wages justice, and that
produces social dislocation more than anything else. At the end of the day,
guns are a symptom of that process...[2]
This line of argument is
essentially the same as that being used in 2005:
The simple fact of
the matter on Industrial Relations is this: the Government does not intend a
fair outcome for ordinary Australians. The Government's objective with
Industrial Relations is not reform but suppression of wages. That is what they
want to do. That is how they've performed when they've handled minimum wage
issues in the past. They don't want a package that is about improving the
economy they want a package which is about oppressing wages. Now, as far as
we're concerned we see the issues of Industrial Relations lying at the heart of
our democracy. The ability of the average Australian to feel that they can
stand up for themselves in the workplace and have their concerns seriously
dealt with. The objective of the Government is to suppress that democratic
sentiment in the Australian community and we're not for it.[3]
The current Shadow
Minister for Workplace Relations, Mr Stephen
Smith, argued prior to the 1996 election
that:
The Howard model is quite simple.
It is all about lower wages; it is about worse conditions; it is about a
massive rise in industrial disputation; it is about the abolition of safety
nets; and it is about pushing down or abolishing minimum standards. As a
worker, you may have lots of doubts about the things you might lost, but you
can be absolutely sure of one thing: John
Howard will reduce your living standards.[4]
Comments such as this are
effectively no different to similar comments made ten years later:
Firstly, these changes will be unfair, they’ll be divisive, and
they’ll be extreme. And secondly so far
as they impact upon Australian employees and their families they’ll have the
affect of reducing their wages, stripping their entitlements, and removing
their safety nets...[5]
The Labor Party’s early
and continued opposition to AWAs, with only muted wavering on their
acceptability in very recent times, indicates the party's difficulty in
accepting the irreversible changes that might place its own structures and
philosophies in jeopardy. The reforms that are at the heart of the Work Choices
Bill will require trade unions to change the focus of their work as simply
being employee representatives in a system built around their specific
requirements and to accept a changing role if they are to maintain their
relevance. Work Choices will create ample opportunities for unions to maintain
their relevance, and indeed importance, in the new system.
If unions fear marginalisation
as a consequence of the passage of the Work Choices Bill, it is largely for the
reason that the pace of economic and technological change, and changes in the
workplace, has outstripped their ability to maintain a support base. There is a
lament, voiced by some at the committee's hearings, about the decline of
collectivism, in many social manifestations, as well as in union membership.
The Australian labour movement’s attitude and its reluctance to modernise sits
in stark contrast to the views expressed by British Prime
Minister Tony Blair,
when he told the British Trade Union Congress in 1997 that:
You should remember in everything you do that fairness at work
starts with the chance of a job in the first place, because if we as a
government and you as a trade union movement do not make Britain a country of
successful businesses, a country where people want to set up and expand and a
country that has the edge over our competitors, then we a re betraying those we
represent...
We are not going to go
back to the days of industrial warfare, strikes
without ballots, mass and flying pickets and secondary action. You do not
want it, and I will not let it happen. I will watch very carefully to see how
the culture of modern trades unions develops. We will keep the flexibility of the present labour market, and it may
make some shiver but, in the end, it is warmer in the real world...
These are social changes
to which workplace relations law must adapt, and the Coalition government finds
itself in the position of needing to respond to the demands of the economy and
the workplace and the changing relationship between employees and work. As the
committee majority has noted in its previous reports, the workplace demand is
now for increased flexibility. Legislation follows social and economic change:
it does not drive it. Nor, in a liberal democracy, can laws prevent such
changes from occurring. There is a strong case for introducing one set of
national workplace rules across the country and updating the system to meet the
needs of the modern workplace.
Acknowledgements
The committee thanks all those who made submissions to this
inquiry, and who were available at short notice to give evidence over the five
days of public hearings. It particularly acknowledges officers from the
Department of Employment and Workplace Relations who spent an extended period
of time before the committee to answer technical questions on the legislation.
Recommendation
Government party senators commend this report to the Senate
and recommend that the Senate pass
the legislation.
Senator Judith Troeth
Chairman
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