Fair Work Amendment Bill 2014 - 16 March 2015

Senator SESELJA (Australian Capital Territory) (20:34): I thank other senators for their contributions to this debate on the Fair Work Amendment Bill 2014, I think if only to highlight some of the absurdity that the Labor Party and the Greens continue to argue in this space.


It is always good to follow Senator Cameron, particularly when he is in lockstep with his Greens colleagues and arguing that what we really need to do to get prosperity in this country is to redistribute all the wealth. That was what Senator Cameron was arguing: it could have been written by Karl Marx himself. It was an extraordinary contribution, ignoring the progress we have seen not just here in Australia but in many other countries over the last 30 years in economic prosperity, which has involved flexibility. It has actually involved increased flexibility, which has led to increased wealth and increased prosperity right across the income scale in Australia. I will get to that.

Senator Cameron seems to believe that the only way to create prosperity is to redistribute wealth. Well, we happen to have a very different view. In response to Senator Cameron I will quote from the coalition's dissenting report into the extent of income inequality in Australia. There we quoted Professor Robert Lucas, who notes:

Of the tendencies that are harmful to sound economics, the most seductive, and in my opinion the most poisonous, is to focus on questions of distribution.

… of the vast increase in the well-being of hundreds of millions of people that has occurred in the 200-year course of the industrial revolution to date, virtually none of it can be attributed to the direct redistribution of resources from rich to poor. The potential for improving the lives of poor people by finding different ways of distributing current production is nothing compared to the apparently limitless potential of increasing production.

That is fundamentally what we are talking about. When Senator Cameron talks and gives his view of the world, and criticises the last 30 years of economic growth and reform, he is arguing, 'If only we'd gone down the path of East Germany, rather than West Germany. If only we'd gone down the path of Cuba, or down the path of the former Soviet Union, then we'd all be a whole lot better off.' I would say that virtually all Australians would realise the absolute folly of such an argument. It is about growing the economy, and in growing the economy we need policies that are fair but that encourage growth, that encourage productivity, that encourage prosperity; not look to simply redistribute an ever-decreasing pie. That appears to be Senator Cameron's argument and it is of course backed up by Senator Rice.

The coalition government is committed to building a strong economy. We are committed to dealing with Labor's legacy of debt and deficits. A key way we can build our economy and deal with this legacy is through boosting productivity. This bill will deliver on the coalition's election promise to improve workplace flexibility and to address the imbalance in union workplace access rules.

Unions represent 13 per cent of the private sector workforce and 20 per cent of the overall workforce, yet the previous Labor government did everything they could to increase union power and influence. And now we have seen the results of allowing unions free reign over workplaces.


Here is a very small snapshot: we saw eight days of unlawful industrial action by AMWU and CFMEU on a WA site, the Woodside LNG project, in 2008; we saw CFMEU officials threatened to stop work at a Lend Lease site in Adelaide if the union flag was not flown—they said, 'If you don't put it up there [union flag on the crane], we'll bring back ten brothers tomorrow and stop the job'; there were alleged threats of retaliatory disruptive industrial action if a Darwin building firm did not give in to CFMEU demands; a WA unionist unlawfully told CFMEU union members to stop work five times at the Probuild Construction site in Perth and unlawfully coerced subcontractors to enter an enterprise agreement with workers. Just this year, we saw a Western Australian union boss fined $35,500 for bullying workers and threatening to have one contractor's workers thrown off 'every construction site you're on in Perth', if they did not participate in a strike. The list goes on and on and on.

So, when Senator Cameron talks about 'more power to the rich and powerful', he could easily be referring to the likes of the CFMEU, because that is what the Labor Party did when they were in office. They gave more and more power to unions who, in the majority of cases, had far more power than the individual businesses or the individual employers who they happened to be dealing with. We know that that is particularly the case in places like Victoria, where the Andrews government is absolutely owned by the CFMEU—lock, stock and barrel—as is the Labor Party more broadly and, as we are seeing over time, the Greens.

The government has already introduced legislation to reinstate the ABCC to deal with some of these issues. We look forward to getting support for that bill. But they need to do the right thing on this issue as well. By restoring balance and fairness to the Fair Work system, we will see less of this union thuggery and fewer damaging and unnecessary productivity losses through unions getting control of workplaces. This bill is in fact delivering not only on our election commitments, but on Labor's commitments from 2007. It also enacts a number of recommendations from the Fair Work review panel in its 2012 report, commissioned by the now Leader of the Opposition, Mr Shorten.

Through this bill we are restoring balance to the system in a number of ways. Firstly, we are improving the process for the negotiation of greenfields agreements, to ensure that unions can no longer frustrate bargaining for these agreements through unsustainable claims and delays, which can threaten investment and delay the commencement of major new projects that are crucial to our prosperity. Secondly, through this bill we are restoring union workplace access rules, reflecting those in place prior to Labor's unbalanced amendments, and dealing with excessive right-of-entry visits by union officials. The bill will also improve workplace productivity and flexibility by enhancing the scope for employees to make individual flexibility arrangements that meet their genuine needs, as determined by those employees. The bill will close the 'strike first, talk later' loophole in the good faith bargaining rules, which Labor refused to address. And, the bill will maintain the value of unclaimed wages held for workers by the Commonwealth.

The Fair Work Amendment Bill will address the current imbalance in union workplace access rules. Our changes will fairly and sensibly balance the right of employees to be represented in the workplace, if they wish to be, with the right of employers to go about their business without unnecessary disruption. The government sees right of entry as a specific statutory privilege to which conditions ought to apply. As we have seen with some of these examples, some union bosses do not.


In 2007, the Labor Party promised on multiple occasions that there would be no changes to the union right-of-entry laws. In a press conference on 28 August 2007, then Deputy Leader of the opposition, Julia Gillard said: '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.' On 26 June 2007 Julia Gillard said: 'We would not want to see changes to the right-of-entry systems that jeopardise work performance.' These promises were not kept and unions were given much easier access to workplaces under the Fair Work Act provisions which were exploited.

This has meant that many businesses face excessive workplace visits from unions, even when their employees are not union members and have not asked for the union's presence. The problem has been exacerbated in some workplaces by unions competing to represent employees at the workplace. The problem was highlighted by the former government's Fair Work review panel, which noted that the Pluto LNG Project received over 200 right-of-entry visits in only three months. BHP Billiton's Worsley Alumina plant faced 676 right-of-entry visits in a single year. Our changes will reduce the capacity for unions to deliberately harass and disrupt businesses in this way.

A recent case featuring CFMEU National President Joe McDonald has underlined the urgent need for these reforms. In the most recent case, where Mr McDonald and the CFMEU were fined $193,600, he ignored consistent requests to leave a site owned by Citic Pacific's Sino Iron Ore in Western Australia. When asked to leave the site because he did not have a right-of-entry permit, Mr McDonald replied, 'I haven't had one for seven years, and that hasn't stopped me'. Mr McDonald's attitude reflects the regrettable dark underbelly of the union movement that should have no place in modern and fair workplaces.

To be clear, these amendments will enact Labor's publicly stated promise prior to the 2007 election, a promise that was not honoured. Given that the Labor Party, in opposition, with the strong support of the union movement, supported this 2007 policy platform, we expect that these amendments will not be contentious. Most union officials will find that these changes will not impact their sensible approach to their right-of-entry activities. Currently, right of entry for discussion purposes can occur when the relevant union is entitled to represent the industrial interests of employees at the workplace. This means unions can enter and hold discussions even if they have no actual members at that workplace and no-one has sought their presence.

The bill will amend the provisions so that the ability for unions to enter a workplace will be tied to either a union's recognised representative role at the workplace or employees at the workplace requesting the union's presence. A union will only be entitled to enter a workplace for discussion purposes if (1) they are covered by an enterprise agreement or (2) they have been invited by a member or employee that they are entitled to represent. If the employee who would like the union to come to their workplace wishes to remain anonymous, a union will be able to apply to the Fair Work Commission for an invitation certificate. The Fair Work Commission must issue a certificate if it is satisfied that a worker who performs work on the premises and whom the union is entitled to represent has invited the union to the workplace to hold discussions. The certificate will not identify the employee who has made the request. This will restore the balance in the right-of-entry regime so that it is similar to the commencement of the Fair Work Act—that is, consistent with the bipartisan consensus at the time of the 2007 election.


This bill will also make amendments to provide clarity and certainty for employees around the use of individual flexibility arrangements. IFAs are an important tool introduced by Labor to allow employees to mutually agree on conditions that suit their needs, while ensuring employees are better off overall compared to their underpinning employment instrument. IFAs are important in helping workers manage childcare arrangements, caring responsibilities and other family or personal commitments. The reality is many people need this flexibility on a range of issues as they work and live their lives, but unions have been able to restrict this flexibility to only cover a single issue, such as taking leave. This means that workers might be denied IFAs on other matters even if their employer agrees to more suitable arrangements.

The amendments deliver on a promise made by Labor in 2007 to allow IFAs to be made in relation to all matters currently prescribed in the model flexibility term and will ensure these arrangements cannot be vetoed by union bosses. In 2014, when most families have parents who both work and single parents have to juggle work and family, it is astonishing that Labor were so beholden to their union mates that they did not allow for this flexibility. If you talk to, in particular, women who are juggling family responsibilities, that kind of flexibility is absolutely crucial. Safeguards remain in place to ensure workers are better off overall. The current legislation, enacted by former Prime Minister Gillard, already allows benefits that are non-monetary to be considered in whether an employee is better off overall under an IFA. These amendments simply clarify this matter and will provide certainty for employees and employers in these arrangements.

Prior to the 2007 election, the then Labor leader, Kevin Rudd, said:

… industrial disputes are serious. They hurt workers, they hurt businesses, they can hurt families and communities, and they certainly hurt the economy.

He also said, of employees:

'They will not be able to strike unless there has been good faith bargaining.'

But, under the Fair Work Act, employees are allowed to strike before bargaining has even commenced. The bill will amend the Fair Work Act to provide that protected industrial action can only be taken if bargaining for a proposed agreement has commenced. This amendment will mean that industrial action cannot be the first step in the bargaining process, restoring a balanced and harmonious approach to enterprise bargaining. The coalition will fix this loophole, and, in doing so, Labor's 2007 promise will finally be implemented.

This bill also deals with what amounts to union veto power over greenfield arrangements, which has enabled them to delay and frustrate these projects by seeking exorbitant wages and conditions or refusing to agree to anything at all. These delays are bad for the economy and bad for workers, who are denied an opportunity for a job because these projects cannot get off the ground thanks to unreasonable union demands. We need to encourage investment, and businesses will not invest in projects when unions are making unreasonable and unsustainable demands about wages and conditions.


This bill will extend good-faith-bargaining rules to the negotiation of greenfields agreements to improve standards of bargaining conduct. This good-faith rule means that unions and employers need to attend meetings and respond to requests in a timely manner. There will also be an optional three-month negotiation time frame that applies when the employer and the union give appropriate notice. Again, this is a fair and reasonable measure. Employers and unions should be able to come to the table and negotiate in good faith and get a reasonable outcome. We need to unlock new investment and give certainty to businesses that can create jobs and grow the economy. That cannot happen if there are needless delays in negotiations. These amendments will send a strong message to investors overseas that Australia is open for business.


In conclusion, this legislation, in large part, simply seeks to implement what the Labor Party promised they would do, prior to the 2007 election. They failed to honour that promise. What we have seen over the past few decades, contrary to the assertions of Senator Cameron earlier, is incremental and sensible labour market reform which has led to greater prosperity in our nation. Some of that has been implemented by the Labor Party and some of that has been implemented by coalition governments. To argue, as Senator Cameron has, that, as a result of any sort of flexibility or anything that in any way curbs excessive union power, workers would suffer, is absolute rubbish and is absolutely contrary to the lived experience. The lived experience is that these kinds of sensible improvements have led to higher wages, better conditions and greater prosperity. That is surely what we should be aiming for as a nation. This bill goes some way towards that. These are sensible amendments and they deserve to be supported by the Senate. I commend the bill to the Senate.