Fair Work Amendment (Bargaining Processes) Bill 2014

It is my great pleasure to be speaking on this matter. The Fair Work Amendment (Bargaining Processes) Bill 2014 was introduced into parliament, into the House of Representatives, last year, before Christmas, and a lot of water has passed under the bridge in terms of the policies and subject matter of the bill but also in terms of the political process.

Of course, this morning we witnessed the spectacle of a party room meeting where certain members of the government, 39 of them, declined to endorse the policy direction of the existing government—a full two-thirds of the backbench, I am advised. Perhaps it is that same life-shortening instinct that moved those 39 MPs to vote that way that has so abbreviated the speaking list on this particular subject matter before the House today, because normally, when a matter dealing with industrial relations regulation comes before the House, we see coalition member after coalition member stumble into this place, waving their arms around about the tyranny of unions, waving their way through last year's talking points.

The subject matter before the House concerns amendments to the Fair Work Act which would change the bargaining processes. Those from the coalition ranks who often speak on these matters feel that their contributions are the first time that a ray of sunshine has visited the House and visited the subject matter, but they always refuse to acknowledge that this is probably the most contested area of public policy debate, a matter that has been the subject of every federal election since Federation and a matter that is genuinely reviewed in fine detail once or twice throughout the term of every government. Those facts generally escape members of the coalition when they contribute to these debates.

What does the bill do? First, it puts in place a statutory mandate that parties engaging in collective bargaining negotiation for an agreement to be registered under the Fair Work Act talk about productivity. You could almost imagine, if this is something that warrants the legislature's attention, that we might also insert an amendment into the act that parties engaging in workplace relations negotiations should breathe oxygen, because it is that level of paternalistic nitpicking that finds its way into this legislation.

I can understand why members of the coalition are intensely embarrassed about their failure when it comes to productivity, because during their time in government we have seen, and particularly during the era of Work Choices we saw, one of the most abominable records of any federal government when it comes to productivity. They promised, in introducing Work Choices into the House, that productivity would soar. It did not. It plummeted. They promise that the single link that is missing in the chain that will drive productivity enhancements in this country is not investment in infrastructure and it is not investment in education; it is going after workers' wages and conditions and, if only those on this side of the House would get out of the way and enable the coalition members to go after workers' wages and conditions, we would see productivity in this country saw.

We disagree with that. We disagree with it on the basis of the facts and on the basis of the hard yards that Labor have done when it comes to productivity-enhancing changes, even in the area of workplace relations. Let us not forget it was a Labor government, throughout the 1980s and early 1990s, that oversaw a significant rewrite of the 1904 Conciliation and Arbitration Act, resulting in the 1988 Industrial Relations Act, which introduced for the first time a statutory provision for collective bargaining that would be recognised by the act, and then again the 1992 reforms, which further enhanced the capacity for collective bargaining. Then, after the failed experiment with Work Choices, it fell again to Labor to introduce changes to the industrial relations laws, to ensure that the coalition's allergic obsession with collectivism was replaced with a sensible, effective, moderate proposition which enabled effective bargaining through collective representatives.

Deputy Speaker, if ever you want one example of the coalition's wrongheaded obsession in this area, just attend yourself to this fact: under the Work Choices legislation, there were no fewer than six different forms of workplace agreements provided for, each with their own scientific tests for regulation and each with their own byzantine regulations and processes for certification and regulation. There were six different types of agreements provided for under the workplaces relations act. When we came to government, we swept aside all of that and put in place a streamlined process for a single form of agreement making, with collective representation and the processes overseen by the Fair Work Commission, and let the parties get on with the business of negotiating and driving productivity and fair wage outcomes in a workplace.

If you want an example of the coalition's wrong-headed obsession with overregulation and the wrong sort of regulation, just turn your mind to that: six different forms of collective agreement when they last had their opportunity, with a Senate which would give the green light to anything they put up. There were six different forms of collective agreement making with all sorts of different and difficult regulatory arrangements in place before the workers and their employers could get on with business.

We understand that there is intense embarrassment on that side of the House about their failed productivity agenda. We were not surprised that they have effectively outsourced it to the Productivity Commission. Make no mistake about this: in deciding to refer workplace relations matters to the Productivity Commission, where everything is on the table, what the coalition and the government are saying is, 'We have outsourced our thinking on this because we do not have a clue and we cannot carry the public debate.' That is what they did when they outsourced policy development and research to the Productivity Commission on this matter. They were throwing in the towel and saying, 'We are clueless when it comes to workplace relations reform.' When you look at their record on this matter, is it any wonder that they have had to do that?

I now talk about some of the other specific provisions within the bill. You have to wonder what has motivated the government. A close reading of the legislation and the explanatory memorandum, particularly the sections of the bill that go to protective action ballots, you have to ask yourself, 'What is motivating this?' because it is certainly not clear on the face of it. As the explanatory memorandum points out, the purpose of this part of the amendments within the bill is to put in place additional statutory tests before the Fair Work Commission certifies or permits a protected action ballot to proceed. The first of these arises from the decision of the full bench of Fair Work Australia in TMS and the Maritime Union of Australia. The legislation effectively takes the decision of the full bench and places it within the legislation. On the face of it you might say, 'What's wrong with that? Why aren't we doing it?' Because each and every application for a ballot before Fair Work Australia must meet the test that was set down. This is not a new decision. It is now 2015. This was a decision of the full bench in 2009. So you have to wonder: 'What is it that has driven the urgency of having this particular part of the bill before the House'—completely otiose in our opinion.

The second part of the bill goes to a new test that Fair Work Australia must satisfy itself when determining whether a protected action ballot should proceed. The new test is that it must be satisfied that the applicant's claims are not manifestly excessive, having regard to the conditions at the workplace and the industry in which the employer operates. I want you to think about this for a moment. The whole notion of the collective bargaining stream within the Fair Work Act was effectively to get Fair Work Australia out of the bargaining room and let the industrial parties, the employer and their employees get around a negotiating table and negotiate these agreements. If they should fail, they may have resort to protected industrial action—either the employer or the employee. But, when you are putting a provision within the legislation which asks the tribunal to make a binding determination on whether the provisions of a claim are manifestly excessive or not, you are providing a de facto arbitration on the matters which are subject of that dispute. Make no mistake about it: when you are putting a provision within the legislation that says that a protected action ballot may not proceed, if, in the opinion of Fair Work Australia the claims that are at dispute between the parties are manifestly excessive, you are giving Fair Work Australia the right to determine that matter and to arbitrate on a subject matter between the parties.

The penny may not have dropped on the other side that that is effectively what they are doing, but, make no mistake about it, in the rough and tumble of industrial relations and in the way these things play out in the workplace, that is exactly what will happen: there will be a dispute between employer and employee. The employer may refuse to accede to the claims or the employees may refuse to accede to the claims of the employer. One or the other may seek a protected action ballot. You can bet your bottom dollar that one of the objections to that protected action ballot proceeding will be that the claims of one party or the other are manifestly excessive. In determining that part of the dispute, they will in effect be determining the whole of the dispute and will be inserting themselves into the bargaining process.

I am almost certain that those on the other side—who will come in here and wave their hands around, using last year's speaking points and talking about the evil of red tape in industrial relations legislation in this country—will not have picked this up. They will not understand it. In spite of all the division that has gone on in their party room today, what binds them together is their abhorrence of anything that has to do with collectivism and their abhorrence of fair work protections in this land. They will not have thought about the pitfalls and that is why these bills should be referred