COALITION SENATORS'
DISSENTING REPORT
Introduction
1.1
Coalition Senators are deeply disappointed that the Government has now
sidelined the bulk of remaining Fair Work Review recommendations. Instead,
Labor has used the so-called ‘Second Tranche’ to grant additional rights to
union bosses without any explanation, and secondly, to respond to a separate
report on workplace bullying. Similar sentiments were expressed in submissions
to the Committee:
...The priorities in the Fair Work Amendment Bill 2013 are overwhelmingly
not those identified by the review panel. The government received 53
recommendations from its review panel and it has not seen fit to base to any
large extent this major tranche of amendments on those recommendations.[1]
1.2
Coalition Senators also find the dishonesty of this Bill breathtaking.
It has now been confirmed that many provisions, although announced with much
fan-fare will have no actual impact whatsoever, for instance those relating to
Penalty Rates.
1.3
Coalition Senators note that the provisions relating to unpaid 'no safe
job leave' in this bill directly reintroduce elements of the Workplace
Relations Act, despite the Labor party's derision of that Act. The
re-introduction of a provision to protect all pregnant workers was confirmed by
the Australian Council of Trade Unions during the public hearing in Melbourne:
It has been in the legislation. We regard this simply as an
oversight. Before Work Choices and, in my understanding, during Work Choices,
through the Fair Pay Commission standards, this was a right and entitlement
that all employees, regardless of their length of service, had. For some reason
it has dropped out.[2]
Regulatory Impact Statement
1.4
Coalition Senators were disappointed to discover that this Bill had been
granted an exemption from the requirement for a Regulatory Impact Statement.
When questioned, Departmental Officers could not provide any substantive reason
for this exemption, as the following exchange demonstrates:
Mr Kovacic: An exemption was granted by the Prime Minister—
Senator McKENZIE: On what grounds?
Mr Kovacic: In terms of the grounds—
Mr Cully: No grounds were specified. That exception was—
Senator BACK: Did the department make that request?
Mr Kovacic: We will have to take that on notice...[3]
1.5
Witnesses expressed concern in relation to this exemption and an
inability to understand the possible impact without such a statement. For
example, Mr Daniel Mammone, Australian Chamber of Commerce and
Industry, stated:
For the purposes you have just alluded to, it is very difficult
to understand the impact not only on the stakeholders—the employees, the
workers, the employers—but also on the regulator. I understand that the
proposed avenue from the Fair Work Commission's recent Senate committee
estimates is that the representatives from the Fair Work Commission indicated
that at the moment they did not have the resources to implement as part of
these proposed measures.
In our submission we have drawn attention in an indirect way
to the number of applications under the unfair dismissal system, which appears
to be tracking at just under 4,000 applications per quarter. This is a
significant increase already on the resources of the Fair Work Commission. We
have some concerns that it will be a system whereby applications must be dealt
with in some way within a short period of 14 days.[4]
1.6
Given this Bill will affect every employer and employee in Australia,
the Coalition believes that these changes would have benefited from a
Regulatory Impact Statement for both the community and the Parliament to have a
detailed understanding of what this Bill entails and the predicted real-world
impact.
1.7
Coalition Senators strongly agree with sentiments expressed by the
Master Builders Association in their submission that 'a fully formulated
Regulatory Impact Statement should be prepared which objectively assesses the
costs and benefits of the amendments'.[5]
Recommendation
1.8
Coalition Senators recommend that the bill not proceed without a
Regulatory Impact Statement.
1.9
As an aside, Coalition Senators note that courtesy of this exemption, a
further Post Implementation Review of the Fair Work Act will now need to be
conducted within the next two years.[6]
Lack of clarity and rushed bill
1.10
One possible reason put forward for the exemption to prepare a
Regulatory Impact Statement was because of the rushed nature of the Bill.
During the Melbourne hearing the Australian Mines and Metals Association
commented:
Senator BACK: This also takes me to the point: why do you
believe there has not been a regulatory impact statement presented as part of
this legislation?
Mr Barklamb: Senator, I would not want to venture an answer
on behalf of the minister but I might recall an observation that we think this
was done in quite a hurry...[7]
1.11
The rushed nature of the Bill could explain the concern about a distinct
lack of clarity that was identified in a number of submissions to the
Committee. For instance, a vast majority of submissions from employee and
employer groups as well as interested parties contained a number of suggested amendments
– largely related to the wording of provisions to provide greater clarity. It
is disappointing that the Government did not take the time to widely consult
and ensure the language contained within the Bill was sufficiently tight.
Rural
1.12
Mr Stephen Smith, Director, Australian Industry Group, advised the
committee that rural industries require particular flexibility, and that the
bill does not support the needs of businesses in rural and regional areas:
I think in terms of the whole legislation, when you look at
all of the elements, it is not going to be a piece of legislation that supports
employment, supports flexibility, and these are issues that are extremely
important in regional areas. Of course, the average size of a business in
regional areas tends to be smaller. They need a lot of flexibility. Businesses
tend to pay closer to award rates of pay in regional and rural areas. So what
is needed is legislative reform that will make things more flexible while
preserving fairness. This piece of legislation, we believe, goes in completely
the opposite direction.[8]
1.13
Mr Innes Willox, Australian Industry Group, advised that employers and
employees tend to have much closer relationships in rural and regional areas.
During the Melbourne hearing Mr Willox submitted that:
I think you could also argue that the relationship between
employers and employees is much closer in regional communities as well, because
of the nature of those communities. Everyone knows each other. So there has to
be a bit of give and take in those sorts of communities. When you are imposing
rigidities on an employee-employer relationship, that makes it a bit harder to
get that give and take going.[9]
1.14
Mr Willox also observed that the agricultural and food sector industries
are an 'enormous growth area', however care must be taken not to burden this
growing sector with rigid industrial relations laws that will constrain growth.
Mr Willox argued that the measures proposed by the bill will 'stifle' growth
'opportunities in some places at some times'.[10]
Getting the balance right
1.15
Coalition Senators are deeply apprehensive towards the dramatic
expansion of rights for union bosses in this Bill. We note that Ms Gillard has
taken great pride that the Fair Work Act, as enacted in 2008, got the balance
right. Indeed, in Ms Gillard’s first press conference as Prime Minister she
said: 'I consulted for hour after hour with business leaders, with union
leaders, with small business leaders to get the balance right'.[11]
1.16
This is something that has been repeatedly repeated, including as
recently as 2012 where the Prime Minister said: 'we built a modern and fair
system that has got the balance right...'.[12]
1.17
While the Coalition does not agree that Ms Gillard got the balance right
in the first place, using her own logic Labor has failed to explain how this
Bill – particularly provisions not recommended by the Fair Work Review and in
the absence of a mandate for change – will affect that balance. Coalition
Senators again pose the question, where is the balance now?
1.18
Further, Coalition Senators note that this Bill will take the count to
more than 400 pages of amendments to the Fair Work Act since 2009. Coalition
Senators do note with some concern the Australian Industry Group’s submission
at Annexure A the detailed list of the 157 new or extended union rights under
the Fair Work Act.[13]
Fair Work Review
1.19
Coalition Senators again express deep concern that the vast bulk of this
Bill does not deal with recommendations arising from the Fair Work Review. Given
the importance of getting the balance right, the Coalition is disappointed that
the government has chosen to clearly skew the Bill in favour of one side of
this contested space rather than seeking the middle ground as the Prime
Minister apparently sought to do. This is best evidenced by the response of
employer groups when asked to provide their wish list of recommendations from
the Fair Work Review. For example, the Australian Mines and Metals Association (AMMA)
provided ten recommendations for reform that it believed 'should have been
prioritised in any 2013 tranche of amendments to the 2009 Fair Work Act',
describing these reforms as 'most urgent to enact', however these reforms 'were
not prioritised by this government'.[14]
AMMA noted that the reforms listed were the most urgent within the
existing 'Fair Work architecture, drawing from the recommendations of the
Review Panel'.[15]
1.20
AMMA's response can be juxtaposed against the obvious delight of unions
when asked the same question, again indicating that this tranche of amendments
are more about keeping Labor stakeholders happy in an election year, and less
about dealing with the reforms that are necessary to make our workplaces safe
and productive. During the Melbourne hearing, the following exchange occurred:
Senator McKENZIE: Were there any recommendations made by the
review of the Fair Work Act that you would have liked to have seen included in
the bill that has already gone through and obviously this bit of legislation?
Ms Bryant: No.
Senator McKENZIE: In terms of the review that was done of the
act and the 53 recommendations that came out of it, which this bill is
supposedly based on, of those 53 recommendations are there any that you are
particularly enamoured of and that you would have liked to have been included
but have not been included in the government's response?
Ms Bryant: I am not aware of any.[16]
1.21
The evidence provided by AMMA and the Shop, Distributive and Allied
Employee's Association clearly demonstrates this government's desire to appease
unions by cherry picking recommendations from the review and increasing
perceptions of class warfare, instead of working towards a balanced response to
workplace relations.
1.22
We have previously dissented, in the Committee’s report into the Fair
Work Amendment Bill 2012 that:
Despite the Review being a disappointing document on so many
levels, Coalition Senators note that on certain issues the reviewers were
mugged by stark realities.
The Coalition has flagged general support for the review.[17]
1.23
Coalition Senators firmly believe that two recommendations in particular
made by the Fair Work Review should have been enacted as a part of this Bill.
Barclay v Bendigo TAFE
1.24
The High Court’s unanimous judgement in the Barclay v Bendigo TAFE case
found that union bosses should not be an untouchable class in the workplace –
something also recommended by the Review Panel. Coalition Senators welcome the
High Court decision and the Fair Work Panel Review’s recommendation to this
end.[18]
1.25
However, Coalition Senators found it disappointing and emblematic that
Labor, through Minister Shorten, intervened in the High Court on the side of
the union boss, Mr Barclay, arguing that it actually was the intention of the
Fair Work Act to make union bosses untouchable even if they did the wrong
thing.
1.26
Labor intervened in Barclay using more than $160,000 of taxpayers’ money
to argue for the union bosses against a taxpayer funded education institution.
1.27
Indeed, in a damning judgement by High Court Justice Heydon, it has now
been confirmed that Mr Shorten acted as an ex-union boss first, and Minister of
the Crown second, after foolishly intervening on the side of the Australian Education
Union in the Barclay v Bendigo TAFE case. Justice Heydon said:
...the Minister's stance before and during the oral hearing was
not that of an intervener, but that of a partisan. For example, some of the
Minister's oral submissions were directed to factual material. This is hardly
the province of an intervener...[19]
1.28
Coalition Senators are disappointed that the Government did not use the
first nor second tranches to enshrine this recommendation into legislation that
would ensure that union bosses are treated the same as all other employees in
the workplace.
JJ Richards
1.29
Then Opposition Leader Kevin Rudd pledged that the Fair Work Act would
not allow the return of ‘strike first, talk later’. Yet, the decision of the
Federal Court in the JJ Richards case tells a different story.
1.30
The Federal Court’s judgment accepts that the argument advanced on
behalf of JJ Richards was understandable and reasonable but for the specific
wording in the Fair Work Act which entitles unions to obtain protected action
ballots in circumstances where most reasonable people would argue that should
not be allowed.
1.31
The Government is yet to tell us whether this was simply a drafting
error or that Labor deliberately misled the Australian people. Their silence is
interesting and causes Coalition Senators to suspect the latter.
1.32
Coalition Senators believe that if the provisions of this case had
exposed a drafting error, the Government would move with some speed to
implement the stated policy that received electoral support at the 2007
election. Coalition Senators are concerned that should the Government not
rectify this it will be viewed as another broken promise, in a similar vein to
the Carbon Tax that Australians had to have despite promises to the contrary in
2010.
Recommendation
1.33
Coalition Senators recommend that the Fair Work Review Panel
Recommendations 31 and 47 be implemented as soon as possible.
Right of Entry – Lunchroom Invasion and Joyrides
1.34
Coalition Senators have long been concerned with Ms Gillard’s broken
promise, that there would be no changes to union right of entry laws. A promise
made on the life of the Prime Minister’s own mother. Labor's Forward with Fairness
document prior to the 2007 election contained an express commitment to retain
existing right of entry provisions. The then Shadow Minister Julia Gillard
directly told us:
[We] will make sure that current right of entry provisions
stay. We understand that entering on the premises of an employer needs to
happen in an orderly way. We will keep the right of entry provisions.[20]
1.35
Based on these promises, it was rightly expected that the existing right
of entry provisions would be maintained. However, as we know, this was simply
just not the case.
1.36
Since the Fair Work Act came into effect, there has been a dramatic
expansion of the laws relating to union access and we have seen an onslaught of
visits. For example, it was recently reported that the Australian Workers Union
made 156 site visits to BHP’s Worsely Aluminium site in 2012 and a further 175
in 2011 and the Pluto project experienced more than 200 union site visits in
the first 90 days of the Act. The vast majority of these visits are either a
blatant membership fishing expedition or designed to intimidate.
1.37
If the initial broken promise is not bad enough, we now have before the
Parliament a Bill that would even further expand the right of entry laws. The
concerns relating to expanded provisions proposed in this Bill are twofold: the
first relates to the default location, if the employer and union official
cannot agree as being the lunch-room; and the second relates to the employer's
liability for travel costs for union officials exercising a right of entry
permit in remote locations.
1.38
Coalition Senators agree with the sentiment expressed by the Australian
Industry Group at the hearing, that this measure is simply an attempt to
increase union membership, and will not increase productivity:
We are always very mindful that union membership in the
private sector is at 13.2 per cent. That is not to say that the unions do not
have a role, they have a very clear role. Where we have a concern about right
of entry is that it would be a distraction in places for some employees and
employees more generally. Being allowed back into the workplace as is proposed
is in many ways a throwback to the 1970s. We have moved on in terms of the
relationships. We believe that this will do nothing to promote productivity. It
will do nothing to promote competitiveness. We just see it as an unfortunate
way to try and drive up union membership. We have concerns on a whole range of
levels about how that will impact within a workplace and within the workforce
more generally.[21]
1.39
Coalition Senators draw attention to the fact that these two provisions
were not recommended by the Fair Work Review Panel and that there do not appear
to be any public interest considerations. Seemingly, there are no justifiable
reasons why these changes would be of benefit to workers, employers or to the
economy – the only party that stands to benefit are union bosses.
Joy-ride scheme
1.40
Coalition Senators are concerned that employers will become responsible
for the costs of transportation where access to the work-site is remote.
1.41
The Australian Metals and Mining Association pointed out in their
submission that the costs of transportation to some regional and off-shore
projects in the mining sector could cost in excess of $30,000 in transport
alone on top of the costs of accommodation and on-site escorts.
1.42
The Australian Metals and Mining Association also pointed to the
significant safety issues with many of these remote sites:
The plethora of safety issues associated with union access to
remote sites includes the fact that infrequent travellers require escorting on
all offshore platforms and in helicopters to ensure their safety at all times.
This is a further distraction requiring extra resources to be diverted while at
the same time opening up the occupier to significant risk and liability.[22]
1.43
Coalition Senators firmly believe that these sites are not tourist sites
or playthings for union salespeople. They are a place for highly specialised
operational workers who have undertaken weeks of intensive safety training, including
underwater helicopter evacuation procedures.
Recommendation
1.44
Coalition Senators recommend that the provisions in the bill that make
the employer responsible for travel expenses relating to right of entry be
opposed.
1.45
The Bill contains a proposal that would make the default location for
union officials to meet with employees the lunch room, in circumstances where
an employer and a union cannot agree on a location. This will force the 87 per
cent of Australian private sector workers who actively choose not to join a
union to be constantly badgered by union bosses to sign-up for membership.
Coalition Senators predict that the vast majority of union bosses will not
agree to any other room. Coalition Senators believe that this change would
simply send a green-light for a lunch room invasion by union bosses right
around the country.
1.46
The Minister has failed to tell us why this is necessary or so pressing.
Coalition Senators firmly believe that Australian workers should enjoy their
lunch in peace and that this provision is a direct attack on the freedom of
Australians to do so. Coalition Senators support the cameo used by BusinessSA
in their submission:
Can you imagine going to your local café to have a meal and a
chat with a friend only to be confronted with someone who is trying to sell you
something. And your only options are to sit and listen or leave?[23]
1.47
Coalition Senators believe that reasonable entry rules for union access
should apply but not just so the union bosses can run rampant. It should be
seen as a privilege that requires special treatment, not something to be
bargained with to threaten and disrupt workplaces.
Recommendation
1.48
Coalition Senators recommend that provisions that make the lunch-room
the default meeting location relating to right of entry be opposed.
Family friendly provisions
Right to Request
1.49
This amendment simply legislates the ability for the employee, in
particular circumstances, to request more flexible working arrangements from
their employer. This Bill sets the bar very low for an employer to reject such
a request and there is no recourse to the Fair Work Commission.
1.50
Coalition Senators view this as legislating something that already
happens in most Australian workplaces where an employee could approach their
employer of their own accord.
1.51
Both the Fair Work Ombudsman and the Department have confirmed at Senate
Estimates that there is nothing preventing such approaches happening under the
current legislative regime. Coalition Senators support observations from the
Law Institute Victoria in its submission that:
The LIV has some concerns that a practical effect of the
amendments may be to create an incorrect impression in the mind of the employee
that employees are entitled to flexible work, rather than entitled to be
considered for flexible work arrangements. The LIV considers that this may
largely depend on how these amendments are communicated, as the wording of
amendments themselves do not detract from the current position...[24]
1.52
Once again, this is clearly window-dressing to no actual effect. If the
Government were genuine about wanting to achieve greater flexibility in the
workplace for people in particular circumstances, they would accept the Fair
Work Review panel’s recommendation to extend the termination period on an
Individual Flexibility Agreement from 28 days to 90 days. This would benefit,
for example, parents with childcare arrangements or grandparents wishing to
spend less time at work.
Parental Leave and pregnancy
protection
1.53
This amendment changes the current qualifying period for unpaid ‘no-safe
job leave’ from 12 months after commencement of employment, to immediately upon
employment. As Coalition Senators have previously noted, the Australian Council
of Trade Unions have confirmed that this provision previously existed in the
Workplace Relations Act 1996, including through the now passed so-called
WorkChoices era.[25]
Concurrent unpaid parental leave
1.54
The Bill extends from three weeks to eight weeks the concurrent unpaid
parental leave that eligible members of an employee couple can take. Also, the
eight weeks will be able to be taken in separate periods (of at least two
weeks, unless a shorter period is agreed) at any time within the first 12
months of the birth or adoption of a child. Concurrent leave can presently only
be taken when a child is born or placed.
Rural areas
1.55
The National Farmers Federation (NFF) expressed concern that the family
friendly amendments may be 'inherently unfair on agriculture employers'.[26]
In relation to the proposed obligation to consult about roster changes, the NFF
submitted that the reform is:
1.55
...overly restrictive especially in relation to an agriculture
workplace where the workflow is unpredictable at most times, depending on the
weather and market. Farm businesses are generally family run and in our view,
these amendments are unnecessary due to current flexible working arrangements
being adequate. [27]
Roster changes
1.56
The bill proposes to introduce new provisions to require employers to
consult with employees on roster changes. It is worth noting that while there has
not been a legislated requirement, it is a longstanding common practice that
employees are consulted on changes to their rostering arrangements.
1.57
Modern awards are already required to contain provisions requiring an
employer to consult with employees about major changes that have significant
impact on employees.
1.58
That said, Coalition Senators are concerned that a lack of clarity in
the wording could lead to unintended consequences as pointed out by Mr Barklamb
of the Australian Mining and Metals Association at the hearing:
Under the current drafting, no roster change would be too
small to trigger the new consultation requirements, which may also act as a
veto on implementing essential changes if misused. Once again no case has been
made to depart from the existing approach—that is, the requirement to consult
over major workplace changes, a longstanding part of our system. We foresee a
confusing overlap of obligations and more red tape in the day-to-day
organisation of work at the workplace level.[28]
1.59
Once again, in the absence of any detailed explanation from the Minister
on why this change is so necessary and with a number of concerns expressed
about the specific wording Coalition Senators recommend that this section
should be reconsidered.
1.60
Business SA rejected the proposed requirement for employers to consult
employees about roster changes. Mr Cairney submitted that employers are happy
to consult with employees, however the proposed reforms introduces a new level
of consultation that will be time consuming and have an impact on business –
particularly business working in rural and regional areas. During the Melbourne
hearing, Mr Cairney explained:
It is not a burden about consulting; it is the level of
consultation and how long it takes. If one looks at what is being proposed, one
can only read it to say that you will not be to be able to do this in a short
period of time. My point about the wine industry, as an example, is that somebody
who starts in the morning on day shift could be asked to work that night to
ensure the grapes are picked. It is not done at the whim of the employer. Quite
the contrary: it is done to meet a need of the industry. With some of these
proposed amendments, one could be forgiven for thinking that employers do not
talk to employees and do not consult; they do. But our reading of what is being
proposed would be too burdensome. In our reading of it, it would take more than
a short period of time. It could take a week or more in terms of what is being
proposed.[29]
Recommendation
1.61
Coalition Senators recommend that the roster changes provision be
reworded to provide more clarity.
Modern Awards Objectives
1.62
Coalition Senators were amazed at the specific wording of these
provisions given the great fanfare and rhetoric from both the Prime Minister
and Minister Shorten.
1.63
This amendment was not suggested by the Fair Work Review Panel. It was
instead suggested by Mr Dave Oliver, the Secretary of the ACTU, in a speech on
6 February 2013 when he said: 'we’ll be asking the government to enshrine
penalty rates for weekend work - in legislation, to protect it forever.'[30]
1.64
Coalition Senators do not believe that the Parliament should be in the
business of legislating the details of each and every Modern Award, taking
account of flexibility that may be required in particular sectors. However it
is important that the Commission both in the current review and in future
reviews take a common-sense approach.
1.65
These changes are summed up well by the Timber Merchants Association in
their submission who say:
The proposed change to the Fair Work Act 2009 will have no
practical effect. Modern awards are already required to contain provisions
requiring an employer to consult with employees about major changes that have significant
impact on employees.[31]
1.66
Indeed, the Department has confirmed that this amendment will have no
practical effect and will not guarantee penalty rates, as has been suggested by
the Minister:
Senator BACK: That's right! I will go to the question of
penalty rates. Can you explain to me in practical terms what the impact of the
change proposed in this amendment bill will be? Already, I understand, the Fair
Work Commission take penalty rates into account, do they not, when determining
modern awards?
Mr Kovacic: There is not an explicit obligation in terms of
the modern awards objective for the Fair Work Commission to take into account
the issue of whether there is a need for additional remuneration for people who
are working unsociable hours, among other things. This makes it an explicit
requirement. But, at the end of the day, the Fair Work Commission will retain
the ability to determine whether or not the remuneration level in a modern
award is appropriate, and the level that it should be based at based on the
evidence that might be presented to it.
Senator BACK: That is the case, isn't it—that, if the
commission chooses to, it could decide not to have penalty rates in an award?
That is the commission's function and right now. So that remains the case, even
with this amendment in place, doesn't it?
Mr Kovacic: That is correct. Indeed, there are some modern
awards that operate at the moment that do not have any provisions around
additional remuneration, whether it is for working weekends or night shifts,
because it of the nature of work in that particular industry.[32]
1.67
Coalition Senators note the widespread concern that has been expressed
by the real estate industry in relation to this provision. The real estate
industry has long had differing arrangements around weekend work, noting that
many house viewings and auctions take place over the weekend – something that
has been supported both by employer and employee representatives before the
Commission.[33]
1.68
Given these amendments will have no actual consequence and that the
Commission will still be open to exercise the same level of discretion,
Coalition Senators have no overwhelming issue with these provisions apart from
that this kind of symbolism could have been achieved without taking up the
Parliament’s time.
1.69
The National Farmers Federation also criticised the proposed addition to
the Modern awards objective, observing that this amendment will entrench
penalty rates – even in those industries that the Fair Work Commission has
previous decided that penalty rates should not apply. The NFF observed that:
The applicability of penalty rates should be considered in
the context of the industry, it should not be a blanket objective for all
industries, especially when certain industries operate predominantly during
overtime, unsocial hours or weekends and the specified rates have already
contemplated the nature of their work hours.[34]
...
The NFF is of the view that the amendments fail to take into
account the macroeconomic effect upon the economy. It is not an appropriate
time to implement legislative action to entrench penalty and shift loadings
into the cost of the labour market. We view the proposal as unbalanced and
counterproductive to trade exposed businesses like farms, which have come under
great competitive strain in recent years.[35]
Workplace Bullying
1.70
Coalition Senators take very seriously the issue of workplace bullying
and noted with interest the House of Representatives Committee’s report into
the issue. However, we are disappointed that the Government did not decide to
deal with this issue in a separate Bill to ensure the necessary oversight.
1.71
Coalition Senators agree with statements at the last round of Senate
Estimates by Safe Work Australia that workplace bullying is an occupational
health and safety issue. We also note that despite the rhetoric from the
Minister, when claims are finalised at the Commission, they will then be
referred to state Occupational Health and Safety Regulators. That said, there
is no detail as to how the Commission will interact with state regulators or
how the Commission will recognise the Work Health and Safety Act or the
Bullying Code of Practice that falls under it. Coalition Senators point to
observations by the Law Institute of Victoria that:
...the LIV questions whether the Fair Work Commission is the
most appropriate forum in which to deal with workplace bullying disputes;
How an order would be enforced in practice. It is uncertain
whether the Bill vests jurisdiction in the Fair Work Commission or a Court to enforce
the terms of the order...[36]
1.72
Almost every submission to the Senate Committee made substantiative
comment on the bullying provisions contained within this Bill. Notably,
concerns were expressed by employee and employer representatives as well as
other interested parties particularly around specific wording and how these
provisions will act in reality. For example, the Australian Nursing Federation
(Victorian Branch) identified in their submission a number of issues where
greater clarity would be of benefit, including:
-
Some description of some of the types of behaviours that would
fall within the definition of bullying;
-
Development of guidance material to assist workers who believe
they have been bullied; and
-
Clarity around whether or not a worker is required to attempt to
use internal grievance procedures prior to making an application.[37]
1.73
The volunteer sector has identified a potential impact of these changes,
as the following exchange indicates:
Senator BACK: I do, Chairman. Thank you very much. In your submission,
you made reference to the impact of the legislation on volunteers. Could you
give us some further information there. For example, what might be the
practical impact of this legislation as presented on a volunteer coach?
Mr Barklamb: I thank you, Senator, for the question and for
picking up on something we take seriously. There are no volunteers in our
industry. We are almost exactly the opposite. We are at the highest end of the
income distribution nationally. But all who appear before you are stewards of
the system. We all have an interest in how our community works and that is the
basis on which we have raised it. There is a statutory note to proposed section
789FC(2), which takes about the definition of a worker, including volunteers.
To be honest, Senator, I do not completely know, but we make just a couple of
points on this. This bill should not proceed and the committee, I do not
believe, should proceed without hearing from the volunteer organisations of
their concerns precisely around the coaches. I understand in the piece of
legislation which is referred to, which is the Work Health and Safety Act,
there is a distinction between volunteers working in volunteering organisations
and in other areas, but I am not clear quite when that provides a protection
and when it does not.
Senator, there is an interesting case underway in America at
the moment—and I do not at all condone this conduct—but there is actually a
volunteer coach of a basketball team, who I was listening to the other day, who
has been withdrawn for bullying his young charges in that particular case.
Obviously, a number of people have experience of those things in their past
when younger et cetera. The reason we raise this is that we think it is a
matter of diligence for the senators and for the committee to understand and
hear from the representatives as volunteers about their concerns and what this
may raise.[38]
1.74
The Government has not responded to these concerns to date.
1.75
Importantly, this Bill also fails to deal with bullying that could take
place in a workplace by a union boss, despite the long history of bullying and
intimidation by some union bosses particularly in the building and construction
sector.
1.76
There is a very long and clear history of bullying tactics by union
officials towards both workers and their employers, most recently at the Grocon
Myer Emporium site which saw union officials bashing police horses. This is
unacceptable behaviour and all Australians should be free to go to work free of
these kinds of thuggery and intimidation.
Recommendation
1.77
Coalition Senators recommend that the definition of bullying be extended
to include bullying by union officials towards both workers and employers.
1.78
Another area that the Government has, to date, failed to deal with is
the additional resources that will be required to deal with these claims at the
Fair Work Commission. Following the Café Vamp OHS prosecution in Victoria in
2010 the volume of claims of bullying from workers to WorkSafe Victoria rose to
more than 6,000 complaints in a year – that in one state alone, one can only
wonder what the implications would be on a national level.[39]
1.79
The Fair Work Commission has expressed concerns about taking on such a
work-load without additional resourcing, saying at Senate Estimates that:
Senator ABETZ: All right. Even if it was not conducted by
the members of the tribunal, do you have sufficient administrative staff
walking around during the day just waiting to be able to resolve bullying
issues, or are they fully occupied?
Ms O'Neill: They are fully occupied.
Senator ABETZ: So the Fair Work Commission would be unable
to deal with any extra workload howsoever arising from the bullying
announcement without extra money?
Ms O'Neill: I think that is right, Senator, but for this: I
cannot comment on what capacity may or may not exist if the work was undertaken
by members of the tribunal. I can certainly say that if the work was undertaken
by members of staff there is not any capacity. I am just not in a position-
Senator ABETZ: All right. Mr Ross, how many hours are spent
on the golf course by your commissioners instead of sitting at the bench? Is
there an extra capacity there in the bench to be able to deal with an extra
workload?
Mr Ross: It would depend on the nature of the functions, I
think. But I know that we are under capacity at the moment rather than having
too much capacity, and that is creating some issues.[40]
1.80
This is something that was also identified by the Community and Public
Sector Union in its submission.[41]
1.81
While Coalition Senators would strongly encourage the Government to
consider the deep concerns that have been expressed by interested parties such
as the Law Council about the wording of these provisions including the
definition of bullying, we are attracted to a proposal put forward in the
Master Builders Association submission:
Master Builders submits that there would be greater utility
in having complaints first referred to an agency, such as the Fair Work
Ombudsman (FWO), and for that agency to be empowered to bring any application
once the case was clearly determined to be legitimate. This would prevent the
lodgement of an application relating to a bullying allegation being used as a
device to foster “go away money” or obtain other leverage at work or, in the
case of subcontractors, getting commercial leverage.[42]
1.82
Such a proposition would be consistent with the requirement under the
model Work Health and Safety laws that only a government regulator can take a
claim – something that was expressly supported by the former Workplace
Relations Minister Julia Gillard.
1.83
Coalition Senators also see merit in having such arrangements to ensure
that only meritorious claims with reasonable prospects of success proceed to
the Fair Work Commission and stop any potential ‘go-away money’ from exchanging
hands. The Fair Work Ombudsman is a well-placed and well respected agency that
could do such work.
Recommendation
1.84
Coalition Senators recommend that workers be encouraged to take all
reasonable steps to resolve their concerns, such as by making a complaint to
the Fair Work Ombudsman, before elevating the complaint to the Fair Work
Commission.
Compulsory Arbitration
1.85
All union submissions to this Committee make recommendations about the
forced or compulsory arbitration in particular circumstances. This is something
that Minister Shorten has told the media that he is considering by way of an
amendment.
1.86
Coalition Senators support the comments of Mr Daniel Mammone of the
Australian Chamber of Commerce and Industry at the hearing that:
In fact, the panel rejected making a recommendation, as
sought by the unions in their submissions to the panel, which would create an
arbitration power for the Fair Work Commission to deal with such disputes.
These proposals will be strongly opposed by the business community.
The government clearly indicated in 2007 and 2008 that its
fair work system would not contain new forms of compulsory arbitration.
However, the act did ultimately include new forms of arbitration for low-paid
bargaining and good faith bargaining in breach of these promises. On the
specific proposal of arbitration for intractable disputes, the then Deputy
Prime Minister and now Prime Minister, the Hon. Julia Gillard MP, on 29 April
2007 ruled this out in the following terms: 'And let me make this absolutely
clear: there will be no compulsory last resort arbitration for collective
agreements, as is desired by the ACTU, under Labor.' These types of proposals
should be subject to a mandate in the 2013 federal election, as occurred in 2007.[43]
1.87
Coalition Senators believe in the strongest terms that any change to
reintroduce compulsory arbitration would be a breach of promise on the scale of
the “No Carbon Tax” or “the best thing we can do for working families is bring
in a surplus”. To reiterate what I’ve said previously, such a breach would also
unleash a new level of legal uncertainty about the whole Fair Work Act as a
whole.
1.88
Coalition Senators note that despite the widespread submissions from to
the Fair Work Review from union bosses demanding wider arbitration, the Panel
concluded that 'we are not inclined to recommend providing any additional
avenues for arbitration'.[44]
Recommendation
1.89
Coalition Senators recommend that no amendments to this Bill nor the
Fair Work Act be made to expand arbitration.
Technical Amendments
1.90
The raft of technical amendments that this Bill makes is largely
technical and grammatical. Coalition Senators note that a majority of these
amendments come from oversights in the Fair Work Amendment Bill 2012.
1.91
Coalition Senators would encourage the Government to take more care when
drafting and point to this as a result of what happens when legislation is
rushed through the Parliament without proper oversight. We also note that this
Bill was passed less than 48 hours after its introduction and the Senate
Committee was significantly curtailed.
Conclusion
1.92
While Coalition Senators recognise that there are both unscrupulous
employers and employees, we support the observation by the Timber Merchants
Association in their submission that:
There appears to be an underlying assumption that the
majority of businesses are in capable of managing employees in a manner that is
beneficial to both the employee and the business. The majority of businesses
operate in a fair and just manner.[45]
1.93
It is very clear that these amendments will not lead to greater jobs
growth nor productivity – or for that matter, any additional protections for
workers. All this Bill achieves is the ticking off of a wish-list for union
bosses. Coalition Senators note that the Minister for Workplace Relations
intends to introduce further amendments to the Fair Work Act in the winter sittings.
Any significant government amendments should be subject to further committee consideration.
1.94
In the absence of significant amendments as recommended by this report
and a Regulatory Impact Statement, the Bill should not be supported.
Recommendation
1.95
Coalition Senators recommend that the Bill be subject to significant
amendment and a Regulatory Impact Statement.
Senator Chris Back
Deputy Chair |
Senator
Bridget McKenzie |
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