Fair Work Amendment (State Referrals and Other Measures) Bill 2009: Second Reading

Jason Clare, Member for Blaxland

Tonight we saw the Liberal Party’s commitment to Work Choices on display again. The Australian people know that Work Choices was unfair and divisive; that is why they rejected it-and the AWAs that slashed the safety net and took away basic entitlements-at the last election. Most Australians rightly think that Work Choices is now a thing of the past, but tonight we see again that the opposition is simply unable to go the final step and fully implement a national system that is based on fairness and decency.

The Rudd government wants a workplace relations system that is fairer, simpler and more flexible, a system that promotes productivity and economic growth. The Fair Work Act ensures that Australia is competitive and prosperous without compromising workplace rights and guaranteed minimum standards. These are fairer laws that balance the needs of employees, the unions and employers; that ensure that all employers and employees have access to transparent, clear and simple information on their rights and responsibilities; that give Australian employers confidence with a simple, fair dismissal system for small businesses; that protect employees by setting fair minimum wages, assisting low-paid and vulnerable employees and those without access to collective bargaining; and that ensure employees freedom of association in the workplace. The government’s new workplace relations system will provide a strong safety net that workers can rely on in good and in uncertain economic times.

The government is getting rid of the extreme Work Choices laws, the laws firmly rejected by Australians at the last federal election. Our workplace relations laws are balanced. No one side has got everything it wanted. The laws are fair to employers and employees and balance the giving of rights with the creation of responsibilities. Our laws bring the workplace pendulum back to the middle where it belongs and where Australians want it to be. The government’s new fair and balanced workplace relations system has enterprise bargaining at its heart to drive productivity. Our laws are about bargaining in good faith at the enterprise level, underpinned by a fair and decent safety net of employment conditions. This is good for employers, good for employees and good for the country.

Having built the Fair Work Act, we are now committed to building a system where all businesses, large and small, are covered by one national law and system. Work Choices was so contentious, so reviled, that it could never have formed the basis of a national system that completely covered the private sector. The values of Work Choices-‘You’re on your own,’ no safety net and no fair go at work-were so strongly opposed by the Australian people that it could never have formed part of a national system. It is only the Rudd Labor government’s delivery of the Fair Work Act 2009 that has been able to bring our national system to fruition.

But we now hear today that the opposition has walked away from the fairness of the Fair Work Act. After supporting legislation establishing Victoria’s referral into the system, we have seen a monumental backflip, a backflip based on misleading information and scaremongering. The opposition has resiled from providing protection from unfair dismissal for Australian workers. The Liberal Party now has a clear agenda to take away these rights from Australian workers. The opposition now says it is outrageous that an employee can be represented by a top-end-of-town lawyer, a right that has never existed in the previous system. The opposition now makes it clear that it wants employees to have no rights during bargaining, no rights to be represented by a person they choose; it should be a choice for the employer in the world of Work Choices.

With the Fair Work Act, we now have a fair, democratic framework for enterprise bargaining: the right to be represented and the right to a good-faith, fair bargaining process, bargaining that is underpinned by a decent safety net, avenues for assistance if negotiations break down, protection of the public interest when industrial action occurs, assistance to bring new sectors into bargaining and a streamlined, flexible bargaining system that meets the needs of all kinds of workplaces. Now we know the opposition’s position. They want the employer to have the right to negotiate directly with their employees. What does that mean? It means individual agreements with no right to be represented. So now we know. The opposition say it is too soon to bring the states into the system, too soon after 12 years of the Howard government’s failure to deliver a national system, after the endless reports it commissioned and after decades of pleas from business for a seamless national system. The opposition’s resiling from this reform is short sighted, petty and without vision-exactly what we expect from the opposition.

But let us get back to the bill before the House. We have worked cooperatively with the state governments and have demonstrated once more the Rudd government’s commitment to achieving important national reform through cooperative federalism. We now mark the next stage in implementing our plan with the Fair Work Amendment (State Referrals and Other Measures) Bill 2009. I remind the Senate that the primary purpose of the bill is to amend the Fair Work Act to enable states to refer workplace relations matters to the Commonwealth for the purposes of section 51(xxxvii) of the Constitution and the creation of a uniform national workplace relations system for the private sector. This will end the overlap and the duplication of state and federal workplace relations systems and end the inefficiency, uncertainty and legal complexity for Australian businesses and employees. The bill also amends the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the T and C act, to establish arrangements for employees and employers transitioning from referring state systems to a new national system and consequential amendments to other Commonwealth legislation required as a result of these arrangements.

Much has been said about the benefits of a national system. For the benefit of the House, I will canvass some of those points. The Australian Chamber of Commerce and Industry has been advocating for a single national workplace relations system for many years, including in its recent submissions to the Senate committee. The Australian Industry Group has also been a long-term advocate of a national system. Since the introduction of this bill into the House some weeks ago, I am pleased to note the passage of legislation in the Tasmanian and Queensland parliaments of laws to refer private sector employees and employers into the new national fair work system from 1 January 2010. Tasmania’s and Queensland’s referrals follow the Victorian government’s referral of powers in June this year. I am pleased to report that the South Australian referral legislation has passed the parliament this evening.

The workplace relations ministers from each of these states have noted publicly the extensive stakeholder consultation undertaken by their governments in reaching decisions on referrals, the broad stakeholder support within their states to participate in a national workplace relations system and the significant benefits that employers and employees in each state will enjoy as a result of the referral. Ministers have also noted that their respective referrals have only come about because of the Fair Work Act 2009, because the laws passed by the Rudd government achieve the right balance between flexibility and productivity on the one hand and fairness and decency on the other. Fairness and decency were, of course, the principles that were gutted under the former government’s extreme and unfair Work Choices legislation.

But perhaps all of this effort is for nought. In the desperate desire to hang on to Work Choices, the opposition appears to be prepared to throw away any chance of achieving a national system, and that desire is all based on misconceptions and untruths. A number of issues were raised in the debate that I now seek to address. First is the termination of the amendment references. The opposition raised concerns about the manner in which amendments to the national scheme can be made. The opposition completely fails to understand cooperative federalism and the importance of a national workplace relations system. Referrals are essential to complete a national workplace relations system. States do not refer matters lightly and they seek to be satisfied that the national legislative scheme is and will remain appropriate for them.

The nature of references of matters under our Constitution means that responsibility for the ongoing scheme is necessarily shared between jurisdictions. This has already occurred for the corporations law, the national water system and others. In recognition of this shared responsibility and the states’ constructive approach to the national system, the commonwealth has committed, in the intergovernmental agreement, to consult referring states on proposals to amend the Fair Work Act. Under the intergovernmental agreement, the IGA, it is only if a state considers that a particular amendment infringes on the fundamental workplace relations principles set out in the bill that proposed amendments are referred for relevant ministers’ further consideration. It is only for these kinds of amendments that the IGA commits the Commonwealth to not pursue amendments-unless they have the support of a two-thirds majority.

For other amendments-for example, to correct a defect or make a process work more effectively-the Commonwealth is merely obliged to consult referring jurisdictions. It is common for referral schemes and associated IGAs to include these kinds of processes for consultation, voting or approval of Commonwealth proposals to amend the national law. The bill recognises that if there are radical changes to the national system a state may no longer wish to participate.

Coalition senators have said that the bill should provide for states to terminate their amendment reference at any time, for any reason, subject to the provisions of an appropriate notice period. The bill already allows for this. A state can terminate its reference at any time by proclamation and will then cease to be in the system. Of course, all employers and employees in the national system are under the Commonwealth’s own power; that is, all employers that are trading corporations and their employees will remain in the national system.

The bill also enables a state in two circumstances to terminate its amendment reference but to nonetheless remain in the national system, effectively suspending the national law-as for referred employers and employees-as it was enacted at the time of the proclamation. This occurs, first, if all other referring states terminate their amendment references on the same day, which is a standard feature of reference schemes after six months notice; and, second, if the state governor considers that an amendment to the Fair Work Act is inconsistent with the fundamental workplace relations principles with three months notice.

Taken together, the IGA and the referral bill provide a safeguard for referring states and ensure that amendments to the act cannot be imposed on the states in a way that undermines the fundamental agreed features of the new national system. In the absence of these safeguards, states may decide not to refer and this would put at risk the uniform national system that businesses and others have long demanded. By opposing these arrangements the opposition demonstrates, once again, its reluctance to work with states on national reform and its refusal to let go of the extreme elements of Work Choices which were so comprehensively repudiated by Australians at the last election.

On the issue of consultation, the development of this bill is a shining example of what can be achieved with cooperative federalism. Coalition senators are critical that there was no COIL process. It should be noted that when dealing with referral legislation it is the states that are the primary stakeholders. There had been wide-ranging discussion with the states on all aspects of this bill. States, in turn, consulted very extensively with their stakeholders, both unions and employers, before deciding to participate. These consultations were set out in great detail in the department’s answer to an opposition senator’s question. There were literally dozens and dozens of meetings, over many months, with those affected in each of the relevant states. I can assure the House that the Rudd Labor government will continue in this spirit of consultation and openness. This spirit of cooperative federalism will continue.

The opposition is, once again, critical of the award modernisation process and continues to take cheap political shots at the commission and the process. We are replacing literally thousands of state and federal awards with less than 125 simple, modern awards. This is a massive and important reform. It is no easy task, but it is one which is on track to deliver significant benefits to employers and employees.

I remind the House that this is a reform the coalition fundamentally supports but could not deliver, despite 12 years in office. For state system employees and employers the bill provides for a sensible, measured and orderly transition to modern awards. State awards will be preserved as federal instruments and will continue to apply, in the exact same form that they currently exist, to referring employees and employers for a full 12 months. After that time, a modern award will apply. However, during the 12 months, Fair Work Australia will be required to consider whether a modern award should be varied to provide appropriate transitional arrangements for incoming state employees and their employers, as the AIRC will already have determined to include a five-year transitional arrangement for all employees and employers currently covered by state-based conditions. This means there will be a five-year transition framework already in place that translating state reference employees and employers can be slotted into when they become covered by modern awards.

In closing, I remind the House that the government intends to have a national system in place by 1 January 2010. This is in the interests of all users of the system to ensure there is certainty and clarity, noting the commencement of the National Employment Standards and modern awards. I commend the bill to the House.