SENATE - Parliament of Australia · CHAIR—We resume the public hearing of the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee inquiry

COMMONWEALTH OF AUSTRALIA

Official Committee Hansard

SENATEEMPLOYMENT, WORKPLACE RELATIONS, SMALL

BUSINESS AND EDUCATION LEGISLATIONCOMMITTEE

Reference: Workplace Relations Amendment Bill 2000

MONDAY, 29 MAY 2000

CANBERRA

BY AUTHORITY OF THE SENATE

WITNESSES

FARY, Mr Geoffrey William, Executive Director, Department of State and RegionalDevelopment......................................................................................................................... 115

DURBRIDGE, Mr Robert, Federal Secretary, Australian Education Union ................ 129

JAMES, Ms Debra, Assistant Federal Secretary, Independent Education Union ofAustralia ............................................................................................................................... 129

McCULLOCH, Mr Graham, General Secretary, National Tertiary Education Union 129

JARDINE, Dr Brian, Federal Secretary, State Public Service Federation Group of theCommunity and Public Sector Union................................................................................. 129

BLAKE, Mr Nicholas, Federal Industrial Officer, Australian Nursing Federation..... 129

CHAMBERS, Ms Mandy, National Industrial Officer, Health Services Union ofAustralia ............................................................................................................................... 129

FREEBURN, Mr Lloyd Douglas, Assistant General Secretary, National Union ofWorkers ................................................................................................................................ 140

LYONS, Miss Susan, Federal President, Equity Division, Media, Entertainment andArts Alliance......................................................................................................................... 140

WHIPP, Mr Simon, National Director, Media, Entertainment and Arts Alliance........ 140

SWANCOTT, Mr Neal Walter, National Industrial Officer, Australian Liquor,Hospitality and Miscellaneous Workers Union................................................................. 140

TIGHE, Mr Peter Anthony, National Secretary, Communications, Electrical andPlumbing Union ................................................................................................................... 140

WOOLGAR, Mr Tony, National Secretary, Textile, Clothing and Footwear Union.... 140

BATT, Ms Karen Michelle, Branch Secretary, Community and Public Sector Union,State Public Services Federation Group, Victorian Branch, Victorian Trades HallCouncil .................................................................................................................................. 152

HUBBARD, Mr Leigh Damien, Secretary, Victorian Trades Hall Council ................... 152

SELLERS, Ms Hannah, Assistant Secretary, Australian Nursing Federation, VictorianBranch, Victorian Trades Hall Council ............................................................................. 152

SHORTEN, Mr Bill, State Secretary, Australian Workers Union, Victorian Branch .. 152

BELL, Mr Kevin Harcourt, Executive Committee Member, International Centre forTrade Union Rights ............................................................................................................. 161

CHIN, Mr David Wai Mun, Secretary-Treasurer, International Centre for Trade UnionRights .................................................................................................................................... 161

LAWRENCE, Mr Anthony John, Assistant Secretary, International Centre for TradeUnion Rights......................................................................................................................... 161

ANDERSON, Mr Alexander John Cairns, Assistant Secretary, Legal Policy Branch 2,Workplace Relations Policy and Legal Group, Department of Employment, WorkplaceRelations and Small Business.............................................................................................. 171

LEAHY, Mr Barry Anthony, Group Manager, Workplace Relations Policy and LegalGroup, Department of Employment, Workplace Relations and Small Business........... 171

SMYTHE, Mr James Edward, Chief Counsel, Workplace Relations Policy and LegalGroup, Department of Employment, Workplace Relations and Small Business........... 171

TACY, Ms Lynne Joan, Deputy Secretary, Department of Employment, WorkplaceRelations and Small Business.............................................................................................. 171

Monday, 29 May 2000 SENATE—Legislation EWRSBE 115

EMPLOYMENT, WORKPLACE RELATIONS, SMALL BUSINESS & EDUCATION

SENATE

EMPLOYMENT, WORKPLACE RELATIONS, SMALL BUSINESS

AND EDUCATION LEGISLATION COMMITTEE

Monday, 29 May 2000

Members: Senator Tierney (Chair), Senator Carr (Deputy Chair), Senators Jacinta Collins,Ferris, Stott Despoja and Tchen

Substitute members: Senator Murray to substitute for Senator Stott Despoja for matters re-lating to Workplace Relations and Small Business

Participating members: Senators Abetz, Allison, Boswell, Brown, Calvert, George Camp-bell, Chapman, Coonan, Cooney, Crane, Crossin, Crowley, Eggleston, Faulkner, Ferguson,Gibbs, Gibson, Harradine, Hogg, Hutchins, Knowles, Lightfoot, Ludwig, Lundy, Mackay,Mason, McGauran, O'Brien, Parer, Payne, Schacht and Watson

Senators in attendance: Senators George Campbell, Carr, Jacinta Collins, Ferris, Hutchins,Murray, O’Brien, Tchen and Tierney

Terms of reference for the inquiry:Workplace Relations Amendment Bill 2000.

Committee met at 2.28 p.m.FARY, Mr Geoffrey William, Executive Director, Department of State and Regional De-velopment

CHAIR—We resume the public hearing of the Senate Employment, Workplace Relations,Small Business and Education Legislation Committee inquiry into the Workplace RelationsAmendment Bill 2000 adjourned last Friday. At its private meeting on 25 May the committeeagreed to hear from additional witnesses representing sectors of the work force having a par-ticular interest in this legislation, from state governments and the Department of Employment,Workplace Relations and Small Business.

Before we start taking evidence today, I would like to state for the record that all witnessesappearing before the committee are protected by parliamentary privilege in respect of theirevidence. Parliamentary privilege refers to special rights and immunities necessary for theparliament to carry out its functions without obstruction. Any act which disadvantages a wit-ness on account of evidence given before a Senate or its committees is a breach of privilege. Irequest that mobile phones are turned off in the committee room and I welcome all observersto this public hearing.

I welcome first an officer from the Victorian Department of State and Regional Develop-ment who I understand is representing the views of several state governments. The committeehas before it your submission No. 61, a joint submission from four state governments. Arethere any corrections or changes you wish to make to the written submission?

Mr Fary—Not to my knowledge, no.

EWRSBE 116 SENATE—Legislation Monday, 29 May 2000


CHAIR—The committee prefers all evidence to be given in public, but if at any time youwish to give any evidence, part of evidence or answers to any questions in camera, you maymake the request. The committee will consider the request, but all evidence may subsequentlybe made public by order of the Senate. I now invite you to make a brief opening statementand then the committee will go to questions.

Mr Fary—Thank you, Chair; thank you, senators. Let me say at the outset that I appreciatethe time and the consideration that the committee has given to me to appear before you thisafternoon. In particular, may I say that my arrival here was somewhat delayed by cancelledflights and the like. At the last minute, I managed to get on but without an adviser. So I hopethat the committee will make the necessary allowances for me.

As the chairman has indicated, the submission which I am making before you today is intwo parts. The first part is a joint statement on behalf of the governments of Queensland, NewSouth Wales, Tasmania and Victoria. It is a relatively brief statement. I might take the libertyof simply reading that joint statement and then, if you please, I will summarise some of thethings which are in the Victorian government’s statement specifically. The joint statementreads: ‘This joint statement of principles is made on behalf of the states of Queensland, NewSouth Wales, Victoria and Tasmania, or the joint state governments. The joint state govern-ments oppose the Commonwealth’s Workplace Relations Amendment Bill 2000. Separatesubmissions for the states of Victoria, Queensland and New South Wales have been tabled.The 2000 bill has similar objectives to the Commonwealth’s Workplace Relations LegislationAmendment (More Jobs, Better Pay) Bill 1999. The joint state governments previously op-posed the 1999 bill which was previously defeated in the Senate. The joint state governmentsoppose the 2000 bill on the basis of the same principles that informed the states’ opposition tothe 1999 bill.

The 1999 bill and the 2000 bill both seek to unfairly disadvantage employees and unions inbargaining processes and to impair the powers of the Australian Industrial Relations Commis-sion. In contrast, the joint state governments’ approach to industrial relations is consistent.The joint state governments support a fair, cooperative approach to the regulation of industrialrelations and industrial relations systems should encourage genuine collective bargainingbetween employers, employees and their representatives at the level agreed to between theparties. The 2000 bill is inconsistent with this approach and these fundamental principles. Inparticular, the joint state governments support the rights of employees, employers and theirrepresentatives to participate in genuine collective bargaining at the level agreed to by theparties, support independent industrial tribunals which can determine issues on their merits,and support legislation which is consistent with Australia’s international labour organisations,which the 2000 bill is not. For these reasons, the joint state governments oppose the Work-place Relations Amendment Bill 2000.’ And that ends the statement on behalf of the four stategovernments.

With your approval, Mr Chairman, I would now like to briefly summarise some of the de-tail which is in the Victorian government’s submission. The Victorian government has someconcerns about the impact of the amendments which are currently before this committee. TheWorkplace Relations Act 1996 currently provides for multipurpose agreements in addition tosingle enterprise agreements. One of the concerns that the Victorian government has is that, inthe proposals which are before the Senate at the moment, there appears to have been no con-sideration given as to how the parties—that is, unions and employers—could lawfully makeclaims to seek agreements other than single level enterprise agreements. However, as I said,the act actually provides for single and multipurpose agreements.



The right of organisations to seek multi-employer or industry level agreements is in factrecognised in international treaties to which this nation is a party. Such negotiations, I hastento add, should be genuine in the view of the Victorian government and the parties ought nottake an inflexible approach. We submit, Mr Chairman and senators, that it is difficult to rec-oncile the amendment with some recent comments that were made by the ILO concerningAustralia’s compliance with convention 98—that is, the right to organise and to take part incollective bargaining. That decision, in fact, made some adverse comments on the currentWorkplace Relations Act.

The Victorian government supports a strengthened and more flexible role for independenttribunals, in particular the Australian Industrial Relations Commission. Unfortunately, in ourview the impact of the amendments which are before you would in fact reduce the commis-sion’s discretion and force it to make orders without considering all of the issues before it ontheir merits.

Mr Chairman and senators, essentially they are the brief opening comments I seek to make.I conclude by making the point that the Victorian government actively seeks to promote anindustrial relations environment which is based on genuine involvement, participation andconsultation by all of the parties—employers, employees and the organisations which repre-sent employees. To that extent we have some concerns that the amendments which are beforeyou are in fact going further down the path of promoting and institutionalising an adversarialsystem. It would appear that the government has tended to be barracking for one side dispro-portionately in that adversarial system rather than encouraging and supporting a cooperative,involved, consultative approach which is at the heart of the approach and the culture whichthe Victorian government seeks to promote. With those brief comments I will conclude myremarks. I am happy to endeavour to answer any questions that you may care to put to me.

CHAIR—Thank you.

Senator MURRAY—Mr Fary, just so I am clear regarding your responses, are you em-powered to speak on behalf of all four governments or just the Victorian government?

Mr Fary—In respect of the joint statement that I read out I am speaking on behalf of allfour governments. In respect of responses to the detailed submission I am authorised to speakon behalf of the government of Victoria.

Senator MURRAY—The right to protected action, which is a right that applies when abargaining period is in place, includes the right to strike. In other words, it is lawful to have astrike at an enterprise level. Does the Victorian government support that right to strike at theenterprise level?

Mr Fary—The Victorian government supports the right to take protected action in accor-dance with the existing provisions of the act, yes.

Senator MURRAY—I have deliberately used the right to strike as part of protected action.I appreciate there are many other forms of industrial action because explicit in the commonexpiry date of enterprise agreements and therefore access to protected action across hundredsof enterprises is the opportunity for strike action across an industry. Therefore I would askyou whether the Victorian government would support protected action across an industry asopposed to just an enterprise, including the right to strike?

Mr Fary—The Victorian government would be concerned at any industrial action, includ-ing strikes, which has an adverse impact upon the Victorian economy. In the context of mak-ing that statement, I also add that the Victorian government recognises that the parties to in-dustrial relationships may from time to time genuinely seek to have arrangements other than



enterprise level agreements. Those arrangements may be multi-enterprise level, they may attimes be industry sector level, or they may be agreements which are directed at a particulargeographic area. If that is the free and genuine wish of the parties, then the Victorian govern-ment is of the view that the legislation should facilitate those outcomes. It would follow fromwhat I have said that the general rights accorded to the parties in any form of enterprise nego-tiations or collective negotiations should spread across the multi-enterprise and sector levelarrangements.

Senator MURRAY—Mr Fary, this may be a difficult question for you because I appreciatethat the Victorian government’s industrial relations relationship with the federal governmentis entirely different from the other three governments attached to your statement. Given thatcontext, I will put the question this way: to your knowledge, is it the intention of the Victoriangovernment, or any of the other three governments attached to the principled statement, tolegislate for the right to strike and take protected action across an industry as opposed to justat the enterprise level?

Mr Fary—I am not able to speak on behalf of the governments other than Victoria in rela-tion to that matter. You may be aware that the Victorian government has appointed a tripartiteindustrial relations task force under the chairmanship of Professor Ron McCallum. We areexpecting that task force to deliver its report and recommendations later on this year. It wouldbe premature for me to speculate on what the content of any Victorian legislation might beuntil such time as the government has received the report of that task force.

Senator MURRAY—Have you reviewed the bill at all with an eye to amending it—namely, to make it fairer, to introduce balance between employer and employee organisations,or to correct some of the weaknesses that have been spelt out by witnesses—or do you thinkthe bill is so flawed that it simply should be rejected outright?

Mr Fary—It was remiss of me at the outset not to indicate that one of the particular con-cerns that the Victorian government has is the relatively short truncated period that we havehad to consider the draft which is before you. Because of that relatively short period—and ourviews in that regard are outlined in the detailed submission which is before you—we haveonly been able to advance our consideration at this point in time to the concerns and short-comings with the existing bill. I am not in a position to comment to you today on furtheramendments which the Victorian government might recommend be inserted in the bill.

Senator MURRAY—Would you agree with a broad perception as follows: that this billdoes not outlaw common claims across an industry but it does outlaw protective action in pur-suing those claims?

Mr Fary—Our reading of the bill is that indeed it does not outlaw common claims, but itwould outlaw most of the mechanisms which are available to the parties who pursue thoseclaims.

Senator MURRAY—Thank you.

Senator FERRIS—Mr Fary, on page 5 of your submission from the Victorian government,under point 21, you talk about how this bill is not just about pattern bargaining but a generalattack on the rights of employees. Can you tell me how this bill is a general attack on therights of employees, in your view?

Mr Fary—Certainly. The bill clearly applies not to any one campaign, but the amend-ments, if carried, will amend the entire act and all applications of the act. For example, theamendments which are sought in relation to section 127 orders, the method and the timing of



same, would apply to all applications for section 127 orders, not just applications which aremade in connection with a particular campaign or a particular multi-industry claim. Hence theview that the Victorian government takes that it applies across the board, and consequently thecomments which are made in the submission you have referred to.

Senator FERRIS—Surely, the opportunity for people to now choose to sit down with theiremployer and strike a bargain that suits them is in fact enhancing workers’ rights. Therefore,if that is not being taken away from them as an opportunity, how could this possibly be a gen-eral attack on the rights of employees?

Mr Fary—The Victorian government’s views are that the parties—employers, employeesand the organisations which represent employees—should be free to genuinely choose theform of outcomes which they believe is most appropriate to their circumstances, be that a sin-gle enterprise outcome, a multi-enterprise outcome, a sector, or geographical area outcome.

Senator FERRIS—Thinking about female employees and the various ages of female em-ployees, how can it be that you can suggest pattern bargaining would be appropriate againstall individual women regardless of their age and their personal family circumstances whenyou set up a framework that they do not have the opportunity to individually negotiate withtheir employer?

Mr Fary—I am sorry, Senator. I should have said I am a little bit hard of hearing and I amnot sure that I have understood the full thrust of your question. But I understand it goes topattern bargaining.

Senator FERRIS—My question follows on from your general attack, which I must say Iam still puzzled about. I would have thought that the opportunity that women now have, re-gardless of the age that they are and their family circumstances, to sit down and strike indi-vidual arrangements with their employer, rather than have an industry-wide arrangement be-ing made on their behalf, would be enhancing their rights not generally attacking them.

Mr Fary—My response to that would be that the party should freely and genuinely choosethe arrangements which they believe are most appropriate to their circumstances.

Senator FERRIS—We agree. I want to ask a question against a background of the fol-lowing quote. It says:We have come away from the strictures of a centralised system which, while we could get aggregatenational wage adjustments from it, we weren’t able to get the sector flexibility we have always knownwe needed, so we are getting very near to one where enterprise bargaining will be the order of the day.

Against the background of that quote, can you just tell me how the provisions of this bill willnot provide adequate protection of employees in the workplace and seriously undermine therole, powers and functions of the AIRC?

Mr Fary—I am not aware of the quote that you referred to and the context of it.

Senator FERRIS—The quote came from Prime Minister Keating when he talked about anew charter for industrial relations in Australia back in August 1992.

Mr Fary—The Victorian government’s view of this particular piece of legislation is that itdoes have concerns with it, for the reasons which I have outlined—the complexity of it, therestrictions that we believe it places on the role of the commission, the prescriptive approachthat it takes to the outcomes that will be achieved, and the fact that it is not consistent withAustralia’s obligations under its international treaty arrangements.



Senator CARR—Mr Fary, I begin with the comments you made on page 4 of the Victoriangovernment submission—which I notice are also echoed in the other government submis-sions. They concern the issue of the independent umpire, as the Queenslanders put it. You talkon page 4 about the concern being expressed about the commission not having discretion, orits discretion being reduced in this bill. Could you explain to the committee in what ways youbelieve the commission’s discretion is reduced by these proposed amendments.

Mr Fary—An example of what we believe would be a reduction in the commission’s dis-cretion is in relation to section 127 applications being made to the commission. It is ourreading of the bill that the commission is obliged within a particular period of time to issuesuch section 127 orders in certain circumstances without hearing, thus reducing the power ofthe commission by so doing to exercise its discretion in relation to the merits of a matterwhich might be before it. Hence the proposition which is in the submission which is beforeyou.

Senator CARR—In your experience, is the reference to the commission being obliged totake into account the particular views of the employer common practice within these sorts ofbills?

Mr Fary—No, to my knowledge that is an unusual provision in the legislative establish-ment of an industrial tribunal and, indeed, a theme in the Victorian government’s submissionis that we believe that the role of the commission, as we believe the role of the Victorian gov-ernment, is to be an honest broker in these matters and not to be seen to be necessarily bar-racking for one side.

Senator CARR—Is that a further reduction in the discretion of the commission—that is,they are required to take into special account the opinions of employers?

Mr Fary—I would believe so, yes.

Senator JACINTA COLLINS—Further on that point, is it common that you would haveprovisions targeted solely at employee organisations as is the case in this bill?

Mr Fary—Consistent with the question which I have just answered from Senator Carr,yes, that, in my view, would be an unusual provision.

Senator CARR—If I could turn now to the question of the definition of pattern bargainingwhich is contained in the proposed amendments in 170LGA. Are you familiar with thosedefinitions?

Mr Fary—I do not have the definitions in front of me.

Senator CARR—They talk about the definition of the meaning of pattern bargaining in theproposed bill I have before me, which speaks of the commission being satisfied that a cam-paign has been launched and that there are objectives which are not genuinely being negoti-ated with employees—between parties at the enterprise level. It goes on to talk about the op-erations of any campaign which, in the opinion of the commission, cannot be satisfied by ne-gotiation at the enterprise level. How adequate do you believe those definitions are of patternbargaining?

Mr Fary—I would find, on the reading that you have just given me, those definitions to besomewhat narrow. I should state that the Victorian government does not support pattern bar-gaining. It does support outcomes which parties freely agree to, to suit their particular circum-stances. But the definitions which you have read to me I find to be somewhat narrow.



Senator CARR—Does it surprise you and the Victorian government that the referencehere is all to employees and their unions making claims rather than the employers and theirunions making claims on an industry-wide basis or on a pattern bargaining basis?

Mr Fary—Yes, it does. It is consistent with the theme of the Victorian government’s sub-mission that we believe that the role of governments and tribunals in industrial relationsshould be even-handed.

Senator CARR—It has been argued on this committee that the commission would havethe discretion to determine whether or not a claim is just or unjust, whether it is reasonable orunreasonable. Are you familiar with those sorts of arguments in regard to this particular bill?

Mr Fary—I am familiar with those sorts of arguments. With respect, I believe that some ofthe provisions of this particular bill in fact reduce the discretion which is available to thecommission.

Senator CARR—In particular, I note here that the explanatory memorandum refers to thisparticular clause. Are you familiar with the explanatory memorandum?

Mr Fary—No, I am afraid I am not at this point of time.

Senator CARR—Section 12 of the explanatory memorandum says:The emphasis in this provision is on the way in which claims are pursued, rather than the merits of theentitlements sought. In determining whether or not it is satisfied that the entitlements being sought areof such a nature that they are not capable of being pursued at the single business level, the Commissionwill not be considering the merits of those entitlements.

Do you regard that as another example of the way in which the commission’s discretions havebeen reduced?

Mr Fary—Yes, I certainly would. There are, and historically have been, issues which havebeen pursued at other than an enterprise level. I believe that if there is to be a comprehensivesystem of industrial relations regulation and facilitation in place, then the commission, as thecentrepiece of that, must have the ability to be actively involved in all types of claims whichare being pursued, not just ones which are being pursued at an enterprise level.

Senator JACINTA COLLINS—Would I be correct in characterising the position as fol-lows: the Victorian government, rather than seeking somewhat clumsily to circumscribe cer-tain types of bargaining, depending upon what level it is occurring at, would prefer to see dis-putes, such as industry-wide disputes, dealt with through the power of the commission and itspublic interest considerations?

Mr Fary—The Victorian government would prefer to see disputes dealt with whereverpossible in a cooperative, consultative and inclusive way. Where it is necessary for the com-mission’s powers to become involved in a constructive way ought to be as unfettered as ispossible.

Senator JACINTA COLLINS—Isn’t one of your principal problems with the current actand the large number of Victorian workers who are currently under the federal jurisdictionthat you are, in fact, holding your taskforce about?

Mr Fary—Indeed it is, and some 700,000 to 800,000 employees in Victoria are impactedby the current act.

Senator JACINTA COLLINS—We are talking here about not only the Victorian govern-ment’s role in relation to Victorian government employees and those that would normally be



within the federal jurisdiction, but actually vast numbers of Victorian workers under schedule1A of the act?

Mr Fary—Correct.

Senator JACINTA COLLINS—Thank you.

Senator CARR—I might just ask, regarding the proposition under 170MWA which saysthat the ARC will have to terminate a bargaining period of a union if it engages in patterningbargaining, would that be a further example of discretion being reduced by the commission?

Mr Fary—I believe so, yes.

Senator CARR—I understand also that this particular clause provides for the ARC the op-portunity to ban a union from making further application for a bargaining period. What sort ofimplications do you think that has for the smooth running of industrial disputes?

Mr Fary—It would seem to me that that reduces the flexibility of the parties and the flexi-bility of the commission to be able to progress a matter to settlement or resolution.

Senator CARR—Just finally, on the issue of international obligations, are you able tocomment on the view of the governments that you are here to represent on the capacity of thislaw to be seen as consistent with Australia’s international obligations?

Mr Fary—The Victorian government believes that aspects of the proposed legislation areindeed inconsistent with our obligations under our international treaties. In particular, as ispointed out in our submission, the International Labour Organisation recently observed that ithad concerns regarding Australia’s compliance with Convention 98—that is, the right to or-ganise and to be involved in collective bargaining. We have detailed in the submission someof the comments that came from the ILO report. It might be worth me emphasising the com-ment from the ILO as follows:Where the act does provide for collective bargaining, clear preference is given to workplace enterpriselevel bargaining. The committee, therefore, again requests the government to take steps to review andamend the act to ensure that collective bargaining will not only be allowed but encouraged at the leveldetermined by the bargaining parties.

I believe that that quote is entirely consistent with the submissions that the Victorian govern-ment is making to you today and, indeed, one of our concerns is that the amendment which isbefore you does little to ensure that Australia does comply with its international obligations.

Senator CARR—Mr Fary, in a previous life I understand you worked for major privatesector corporations?

Mr Fary—That is correct.

Senator CARR—We have had evidence before us that many of our trading partners,countries that could be regarded as of like mind in terms of their social development, do nothave prohibitions on collective bargaining and certainly do not have prohibitions on the rightto pursue cases through the legal right to strike. In your judgment, is there is a link betweenallowing collective bargaining and productivity, or a decline in productivity as it has been putto this committee?

Mr Fary—You referred to my previous life as a director of a major private corporation.That corporation, after doing detailed research, took the view that the interests of its share-holders were best served by the company pursuing a constructive, engaged, collective rela-tionship with its employees and the organisations which represented them rather than themore traditional adversarial approach. The reason that that organisation increasingly takes



that view—and I believe many others—is that there is now a considerable body of evidence tosuggest that there are cold, hard, commercial reasons to support such a view that it is beingdone for purposes of sustainable competitive advantage. Indeed, that is a similar view to theone which the Victorian government is seeking to promote in its influence on industrial rela-tions within the state of Victoria.

Senator CARR—So the United States, for instance, does not have a prohibition on collec-tive bargaining and the right to strike in support of agreements being sought on an industrywide basis? Most of Europe does not, as I understand it?

Mr Fary—To the contrary, I understand the United States actually enshrines such rights intheir legislation.

Senator CARR—But countries like Turkey, Chile and a few others of that description, donot see the world in those terms. Do you think we should be regarded as joining that group ofcountries, or should we be sticking with the countries in Europe and the United States?

Mr Fary—That is a difficult question for me to respond to. My experience to date, bothwith the Victorian government and previously with the corporation that I work for, did notextend to Turkey and Chile.

Senator CARR—Thank you.

CHAIR—Is it not a fact that the Victorian government is concerned about Campaign2000? Does the Victorian government support industry wide action in the Victorian manu-facturing industry?

Mr Fary—The Victorian government would be concerned about any campaign which in-volved industrial action which adversely impacted upon the Victorian economy. That remainsits position. The Victorian government, in the context of that position, supports outcomeswhich are freely agreed to by the relative parties in an industrial context, be those outcomes atan enterprise level, where they principally are, at a multi-enterprise level, an industry sectorlevel, or a geographic area level. Indeed, there are many successful and long-term examples ofsuch other arrangements being in place. If that is genuinely the wish of the parties, then theVictorian government supports mechanisms which give effect to that wish.

CHAIR—The Victorian Attorney-General, Rob Hulls, today described the finds imposedby the Federal Court this morning for contempt—$20,000 on two union officials involved inCampaign 2000; Craig Johnston of the AMWU and Dean Mighell of the Electrical TradesUnion—as appropriate. Is the Victorian government also concerned, like the court, that theseunion officials may again break the law by taking unlawful industrial action, or disobeyingcourt orders?

Mr Fary—I am not in a position to add anything to what the Victorian Attorney-Generalmay have said, nor have I at this point of time had an opportunity to read the decision handeddown by the Federal Court this morning.

CHAIR—Is it not a fact that the Victorian government, the office of Premier Bracks, haspublicly described the forthcoming industrial action in the metals campaign to be ‘apocalypsenow’? Doesn’t it indicate some concern about the campaign by the unions?

Mr Fary—If that terminology has been used other than in relation to a movie of some 20or 30 years vintage, I am not aware of it.

CHAIR—What is your view in relation to the campaign? The Premier’s office has stated itin those terms—what is your view?



Mr Fary—As I said earlier on, I believe, the Victorian government would be concerned atany industrial action which adversely impacted upon Victorian industry. In that context, theVictorian government supports the parties genuinely and freely arriving at arrangementswhich best suit the circumstances of their particular industry.

CHAIR—You have stated a number of times that if it does adversely affect the Victorianeconomy, you would have concerns about it. Surely a description by the government of like‘apocalypse now’, what do you think they are referring to, if it is not major damage to theVictorian economy by such a campaign?

Mr Fary—Senator, I am sorry, I should have made it clear before that I am not aware ofthe quote that you are referring to; it certainly has not been made to me. I am not aware of thecontext that it was made in.

CHAIR—Is it not a fact that the Labor state legislation—as you are representing a numberof governments here—in Queensland, New South Wales and Tasmania does not allow pro-tected industrial action for pattern bargaining?

Mr Fary—I should make it clear that the unusual circumstance of my appearance here to-day was, firstly, to read a statement on behalf of four states. In fact, I am providing detailedrepresentation for one state only, the state of Victoria. I am not in a position to comment onthe position or the legislation which applies in other states.

CHAIR—Surely you are in a position, as an expert in the field appearing here today, tocomment on things that are in process. I ask again: isn’t it a fact that the Labor state legisla-tion in Queensland, New South Wales and Tasmania does not allow protected industrial actionfor pattern bargaining? If so, why then would the Labor states be opposed to the federal lawswhich outlaw industrial action in support of pattern bargaining?

Mr Fary—I am not aware of the detail of the legislation which applies in states other thanVictoria.

CHAIR—Let me put the proposition very simply to you: if the other states are all outlaw-ing this—and you are here representing them today—and this legislation that we are consid-ering does the same, where is the inconsistency in the approach?

Mr Fary—One of the concerns that the Victorian government has with the legislationwhich is before you today is its complexity, the relative lack of time that the Victorian gov-ernment, along with the other parties, have had to deal with it.

CHAIR—To deal with what?

Mr Fary—To consider the proposed legislation which is before this committee today.

CHAIR—The normal process for a long period of time has been for legislation. They usedto actually call these Friday committees.

Senator CARR—Not with only 10 days’ notice.

CHAIR—No, even less.

Senator CARR—That is highly controversial—

CHAIR—Order, senator, I am speaking, not you. If I could just explain: what has normallyhappened historically is that the matter is brought before the committee on a Tuesday, it isconsidered in legislation on a Friday and the report was the following Wednesday. That is atypical pattern for considering legislation. That is why these were called Friday committees. If



you are trying to make an impression that this is unusual, this is the normal process of theSenate.

Mr Fary—My submission to you would be that this is an immensely complex piece of in-dustrial legislation—

CHAIR—A lot of legislation is complex.

Mr Fary— because of the arrangements which applied under the previous government inVictoria. The transfer of the industrial jurisdiction from the state of Victoria to the Common-wealth has a particular impact upon the state of Victoria. Initially, the state of Victoria wasgiven, I believe, some 48 hours to consider this draft legislation. That was extended by a fur-ther three days. It would be our submission to you that a piece of legislation, which has thecomplexity of the bill which is before you, to be duly and properly considered requires furthertime from that which we have been given.

CHAIR—Wouldn’t you agree that, outside that 48 hours, you had knowledge that this wascoming? Indeed, we have very detailed submissions from all sorts of groups before this com-mittee that obviously started that process before a 48-hour period.

Mr Fary—We had knowledge that some legislation was coming; we did not have knowl-edge as to what the content of that legislation was. The submissions which have been made bythe Victorian government go into some detail at the Victorian government’s concern at thecomplexities of the content of that legislation.

CHAIR—Even though you might be able to take issue with certain points of the legisla-tion, would you agree with the general principle that if all the governments that I mentioned,as well as the federal government, are in accord on the central principle of outlawing patternbargaining—you might disagree on minor details—that perhaps the federal legislation is theway to go, given that consistency of state legislation?

Mr Fary—That federal legislation is the way to go, did you say?

CHAIR—What we are doing is entirely consistent with what is happening in other states.

Mr Fary—There was discussion earlier on today in terms of the definition of what consti-tutes pattern bargaining. There has been bargaining and industrial arrangements at other thanthe single enterprise level historically for many years. Many of the parties—employers, em-ployees and the unions—support those outcomes.

Our concern with the package which is before you today is that it is not just about patternbargaining, but goes beyond that. We support collective bargaining at the level that the partiesdetermine to be appropriate. We have a concern that the current federal legislation allows formultiple business arrangements. However, the amendment does not provide a facilitativemechanism for how those multiple agreements may lawfully be made. We are concerned thatthe proposal which is before you was not consistent with Australia’s obligations under theInternational Labour Organisation treaty.

Senator GEORGE CAMPBELL—Can I just draw your attention to the comments theChairman made in the previous question. I think that really did define the nub of this legisla-tion. He said it was about outlawing pattern bargaining. In terms of the public sector employ-ees in Victoria, how extensive is pattern bargaining in the public sector?

Mr Fary—There is a variety of arrangements in place in Victoria over different depart-mental and government agency levels. Certainly, in many government agencies in Victoriathere are arrangements in place which some might describe as having been pattern bargaining



outcomes inasmuch as they are agreements which cover more than one agency and more thanone site, and provide for commonality of outcomes across agencies and sites.

Senator GEORGE CAMPBELL—Have you had the opportunity to look at the implica-tions of this legislation for the public sector in Victoria and the way in which your govern-ment has been engaged in industrial relations vis-à-vis the previous government in Victoria?

Mr Fary—This legislation, if indeed passed, would add to the degree of complexity of theVictorian public sector and Public Service arrangements which are being contemplated by allof the parties being given effect by way of certified arrangements in the Australian IndustrialRelations Commission. As you may be aware, there is no industrial tribunal in Victoria. TheVictorian powers are exercised under schedule 1A of the Workplace Relations Act. The in-struments of certification for collective outcomes in the Victorian public sector reside with thefederal commission and, hence, we would have concern at the ease with which such arrange-ments could be given effect to.

Senator GEORGE CAMPBELL—Do you believe there is a potential in this legislationfor it to be used to cut across the desire of the Victorian government and its employees tocome to sensible arrangements?

Mr Fary—There is certainly potential for that to occur, yes.

Senator GEORGE CAMPBELL—Finally, Mr Fary, do you think it is reasonable andsensible, as part of the industrial relations process and probably a process of making legisla-tion, to introduce legislation that is simply targeted at specific instances that might occur inthe future, vis-à-vis the campaign 2000 reference?

Mr Fary—No, Senator. I believe in the industrial area, in particular, that good legislationshould be general legislation, not legislation which is targeted at a specific particular instance.

Senator GEORGE CAMPBELL—Thank you.

Senator TCHEN—I just want to clarify a point, Mr Fary. At the beginning of your evi-dence you read out a joint statement from the four eastern states. Were you fully briefed onthe statement?

Mr Fary—Yes, I was.

Senator TCHEN—Perhaps you can clarify a point for me. The statement very clearly saysthat the four joint governments support collective bargaining. They oppose this bill, but theysupport collective bargaining. Does that mean that the four governments do not support enter-prise bargaining as opposed to collective bargaining?

Mr Fary—Senator, enterprise bargaining is collective bargaining.

Senator TCHEN—No, it is not; I am sorry.

Mr Fary—I beg to differ, Senator. Collective bargaining—

Senator TCHEN—I am sorry, Mr Fary. When the 1993 bill was brought in, it was clearlymade a watershed between collective bargaining and enterprise bargaining.

Mr Fary—With respect, Senator, I have been a practitioner in this field for some 25 yearsnow. I can assure you that enterprise agreements have a multiplicity of forms. For the mostpart they are negotiated in a collective way. That is the definition of collective bargaining.They may be negotiated with or without the involvement of industrial organisations; for themost part, with the involvement of employee organisations. The vast majority of any enter-



prise agreements which I am aware of, including section 170LK enterprise agreements, arecollective agreements.

Senator TCHEN—So you are not opposing this, because this bill sets out to strengthenenterprise bargaining and you have no problem with that intention?

Mr Fary—The Victorian government has absolutely no problem with collective bargainingat the enterprise level, if the parties freely choose for it to be so at the industry level, at a mul-tisite level or, indeed, for geographic regions. There are a number of instances of longstandingcollective geographic region agreements in place.

Senator TCHEN—However, the Victorian government would oppose pattern bargaining?

Mr Fary—It depends on one’s definition of pattern bargaining.

Senator TCHEN—That is the hard part, Mr Fary. We have been listening for nearly anhour and I have not found out what you actually support yet.

Mr Fary—Let me make it clear, Senator. The Victorian government supports an industrialrelations environment which is based on the involvement of employees, cooperation betweenthe parties, with outcomes which are freely agreed to in terms of whether those outcomes areenterprise level, industry level, sector level, multi-enterprise level or geographic region andthat are freely arrived at between the parties. We do not believe it is the role of government orof the commission to be prescriptive to the parties as to what shape their outcomes will take.

Senator TCHEN—Should such an outcome not be achievable, what is the Victorian gov-ernment’s position?

Mr Fary—The Victorian government seeks to be an honest broker in these matters. Youmay be aware, as I understand you are a Victorian senator—

Senator TCHEN—No, my question is: should that outcome not be achievable, what is theVictorian government’s position?

Mr Fary—Indeed, I was about to respond to that. As you may be aware, the previous stategovernment in Victoria referred the Victorian government’s industrial powers to the federalgovernment. Clearly, there needs to be some mechanism of facilitation, conciliation, media-tion or arbitration in the event of parties at the end of the day being unable to reach agree-ment. That is one of the reasons the Victorian government has appointed the task force whichI referred to and which we expect to report back to us within a matter of months.

Senator TCHEN—Yes, I was about to come back to this task force. This task force isabout to report on how Victoria should approach it. I presume that the recommendation is notknown yet. Nevertheless, the Victorian government feels confident enough about the likelyrecommendation to come out opposing this bill strongly. Are you confident of the outcome?

Mr Fary—Are we confident of the outcome of the task force? I do not know what the out-come of the task force will be.

Senator TCHEN—Of the task force recommendation?

Mr Fary—I would not prejudge the outcome of the task force, but the Victorian govern-ment has a policy framework within which it determines its approach to industrial relations.The submission which is before you and the comments which I have made today are consis-tent with that policy framework.

Senator TCHEN—Yes, I am aware of that.



CHAIR—We will have to finish there, I am afraid. Thank you for appearing today.

Mr Fary—Thank you, Senator.



[3.20 p.m.]DURBRIDGE, Mr Robert, Federal Secretary, Australian Education UnionJAMES, Ms Debra, Assistant Federal Secretary, Independent Education Union of Aus-traliaMcCULLOCH, Mr Graham, General Secretary, National Tertiary Education UnionJARDINE, Dr Brian, Federal Secretary, State Public Service Federation Group of theCommunity and Public Sector Union.BLAKE, Mr Nicholas, Federal Industrial Officer, Australian Nursing FederationCHAMBERS, Ms Mandy, National Industrial Officer, Health Services Union of Austra-lia

CHAIR—I welcome representatives of unions representing employees predominantlyfrom the public sector: the Australian Education Union; the Independent Education Union ofAustralia; the National Tertiary Education Industry Union; the CPSU and the State PublicService Federation Group; the Australian Nursing Federation; and the Health Services Unionof Australia.

It is a fairly unusual procedure to have so many in one session and we are confining ses-sions to 45 minutes, including questions. I would ask people to just keep that in mind in termsof opening statements. We have written submissions, so we would just ask that openingstatements to be kept as brief as possible because of that.

The committee has before it written submissions from each of your organisations. Are thereany corrections or changes that you would like to make to the written submissions?

Mr McCulloch—No.

CHAIR—The committee prefers all evidence to be given in public but if at any time youwish to give any evidence, part of evidence or answers to any questions in camera, you maymake the request. The committee will consider the request but such evidence may subse-quently be made public by order of the Senate. I now invite each of you to make a very briefopening statement and then the committee will go to questions.

Mr Blake—The Australian Nursing Federation represents 120,000 nurses employed in thepublic, private, aged care and community services sector in all parts of the country. Ninety-five per cent of those members are women. They are highly skilled and highly mobile.

We have in our submission indicated our strong opposition to the bill. We do so for a num-ber of reasons. We say the bill will further restrict the role of the Australian Industrial Rela-tions Commission. We say the bill would further create an imbalance in an industrial relationssystem that currently favours employers. We say that in terms of outlawing pattern bargain-ing, this would have a significant negative impact on the ability of our members to providenursing care. We say that in relation to pattern bargaining in particular that the AustralianNursing Federation has worked over a number of decades to ensure there are nationally con-sistent wages and terms and conditions of employment for nursing staff. We have done thiswith the strong cooperation of employers throughout the country and with government, bothconservative and Labor.

In relation to enterprise bargaining, we strongly support pattern bargaining. We have enter-prise bargaining agreements in most states under the federal system. As a general statementwe say that those agreements are similar in terms of wages. In respect of the states them-



selves, in Victoria we have currently over 300 agreements which are identical, and that hasbeen done with the strong support of employers both in the public and private sectors. On thatbasis, we are opposed to any changes to pattern bargaining. We believe that an industrial sys-tem should foster and encourage multi-employer industry outcomes. On that basis, I amhappy to answer any questions in relation to our submission generally.

CHAIR—Thank you for keeping that brief.

Ms Chambers—I would like to thank the committee for giving the HSUA an opportunityto make this submission. The HSUA represents over 65,000 members across Australia. Werepresent all classifications of workers in the health and community services sector. The keything about this sector, particularly with reference to enterprise bargaining, is that we are es-sentially working in a funded public and private sector. The funding of health and communityservices occurs either through the Commonwealth or through the state governments. There islimited or no capacity for employers to actually generate funds themselves. There is very lim-ited profit. Indeed, most operators operate on a budget deficit.

The HSUA is a respondent to over 30 federal awards, over 80 to 90 per cent of our mem-bers are covered by enterprise bargaining outcomes and generally the wages are significantlyhigher than under the award. It is important to know, though, that where the HSUA is not ableto participate in industry bargaining, essentially our members remain on award terms andconditions. In response to the position asked of the previous witness by Senator Ferris,whether or not women in particular would be better able to negotiate with employers directly,it is our experience that that is simply not the case. The majority of our members are womenwho work—particularly our low paid members—on a part time or casual basis and they havevery limited capacity to negotiate directly on an enterprise basis.

The proposed amendments, in our submission, are fundamentally flawed and will have asignificantly detrimental impact on our members. The present drafting of section 170LGAprohibits pattern bargaining if it can be established that all of the common entitlements beingsought are of such a nature that they are not capable of being pursued at a single businesslevel. In our submission, it is almost impossible to imagine any entitlement that is not capableof being pursued at an enterprise level. Whether an employer has the capacity to agree to whatis being pursued is an entirely different thing, but that is not the way the legislation is drafted.

The employers we deal with will have no capacity to reach agreement with us on absentgovernment funding, or government policy about funding. That goes to not simply wages, itgoes to all entitlements. If you change a roster arrangement in a nursing home, that will havea funding impact. So employers have no capacity and, indeed, no desire to bargain with us onan individual basis. They want us to bargain centrally; they want us to bargain with govern-ments. So that is what we do.

The further problem is that the deeming provision in section 170LGA is entirely restrictiveand prevents our members from pursuing protected industrial action as is their right across theindustry. Our members—and I speak here in relation to both the HSUA and, generally, theANF—in the health industry, are not quick to take industrial action. They have a concern fortheir clients and their patients. But when they do, they want to send a message because, aseveryone knows, the funding arrangements and the restrictions under which they work areparticularly onerous. If they are deprived of the capacity to take protected industrial action topursue their outcomes, then that can have particularly inequitable results.

Presently, the commission can terminate bargaining periods where there is a potential threatto the health and welfare of a portion of the population. That happens in our industry and,



generally speaking, when the bargaining periods are terminated, the industrial action ceasesbecause the members understand that there will be a result either through conciliation, whichhas been our experience, or through arbitration, which has also been our experience.

The current proposal at section 170MWB to terminate a bargaining period where patternbargaining has occurred, without the ability of the commission to conciliate or then arbitratethe dispute, is a potentially disastrous result because our members are left with an uncertainoutcome. They are left without the knowledge that the matter can be resolved and you have apotentially unstable industrial environment which is not in the public interest, particularlywhere vital health and community services are concerned.

Dr Jardine—In our view the only basis on which most of this legislation could be justifiedis the view that pattern bargaining is a bad thing which should be at least inhibited. But ourexperience shows that all governments—state and federal; and they are basically at the end ofthe day the employers with whom we are dealing for our 104,000 members—whether they aredealing with people under state or federal awards always engage in pattern bargaining.

We have, in our submission, referred to some examples of it—for example, the formerVictorian government. It was perfectly clear through a very long bargaining process that therewas really only one pattern of bargaining being put forward on behalf of the Victorian gov-ernment. We have also referred to the position affecting universities where we cover generalstaff. The Commonwealth government has put forward what could only be described as apattern bargaining agenda seeking to influence the outcomes across Australia with universi-ties. There is nothing secret about that information—the list of demands is readily availableon the DETYA website.

We understand why governments do that. In each state there is one state treasury; there isone state budget. All state agencies, whatever their status, are either funded from those budg-ets or they are contributing to them. Governments are responsible for their funds, they areanswerable to the electors and the taxpayers and they naturally seek to influence and getcommon outcomes, so they pattern bargain. They have common claims. It used to be thatthere was normally just resistance, but these days it is common claims. We see that that is thecase and, that being the case, there is really no foundation for saying that pattern bargaining issomething that is inappropriate or should be inhibited.

We also see that there could be considerable difficulties and disadvantages in applying thedefinition. We have broad policies and some of them extend across our whole organisation—policies on salary structures which we have pursued for many years. Some are specific to par-ticular areas like universities. These are determined by our elected bodies in delegates meet-ings—for example, universities or by council or executive. They are the starting point for ourclaims.

We are well aware of the need to look for different outcomes in different departments andstates, depending on whether we are dealing with federal or state awards. For example, in theuniversities at the moment for general staff there are now a number of awards—some are inplace already—which deal either with single universities or with groups of universities wherethat seems appropriate—for example, in Western Australia—both to the employers and to us.Although we might look at the end of the day at different solutions and ones that facilitatedifferent arrangements, we do come from a common starting point. We see that as a legitimatestarting point; it is the same sort of starting point as the people on the other side of the table.That being so, there should not be inhibitions on the way in which we pursue those legitimateobjectives.



Lastly, I would like to draw attention to some of the other aspects about the use of section127, but I draw attention in particular to a situation we have in one area where we have diffi-cult industrial disputes—that is, the prisons area. We cover prison officers in most states, ex-tending into private prisons. Disputes occur in prisons and industrial action is taken. Theyoften occur in very difficult circumstances where an officer has been killed or seriously in-jured. We see these things as health and safety issues and there is a pretty clear demonstrationof that when someone is dead or in hospital as a result of what has happened. But they areinextricably bound up with staffing and rostering questions. Employers often will take theview that they are not actually health and safety issues, that they are about something else.

These are urgent disputes which need to be dealt with and the substance dealt with as soonas possible. This is something that fortunately does not happen every day, but it happens. Wehad a very recent example in Victoria. What is really necessary to solve the problem is forindustrial tribunals to come to grips with the question without the red herrings posed bythreats of proceedings under section 127 and certainly not with a prospect of wandering offinto state supreme courts or other tribunals which simply do not have the capacity to deal withthe issue. They are urgent things and the bill would contribute nothing to their solution.

CHAIR—Thank you very much.

Mr McCulloch—I represent the National Tertiary Education Union. We have about 25,000members, 17,000 of whom are academic staff, ranging from the most junior to the most sen-ior, and about 8,000 are general staff workers, ranging from blue-collar workers to seniormanagers. We are fundamentally opposed to this bill. We believe it represents a substantialattack on our organisation’s capacity to defend our members’ industrial and professional inter-ests. We also believe the bill is manifestly one-sided. I want to underline those points by refer-ring to three particular things.

Firstly, in our sector, our union has pursued common claims across the sector for both the1996 to 1998 enterprise bargaining round and, more latterly, the 1999 to 2002 enterprise bar-gaining round. Those common claims went to important issues that affect our members pro-fessional as well as industrial standing—things like protection of academic freedom, pursuitof indigenous employment opportunities within the sector, protection of superannuation, andprotection of previously allowable award matters which are now not allowable, most notablyprotections against termination of employment. We have sought to regulate on a common ba-sis contract and casual employment and we have sought, particularly in the new environmentof there being only a minimum award safety net, to put a minimum floor under the wagesrates for our members across the sector.

I hasten to add—and it is a fundamental point—that, although we have pursued commonclaims, we have not generated common outcomes. In the 1996 to 1998 enterprise bargaininground, in terms of the dispersion on wages, we fixed a minimum floor that the union wouldallow nobody to fall below—11 per cent—but the dispersion range was between 11 and 14per cent over a two-year period, depending on the capacity of the employer to pay, and thelengths of agreement were quite different. Likewise, in the most recent bargaining round, theunion has fixed a minimum of 12 per cent below which we will not let any of our workersfall, whether they be high or low paid workers. Nonetheless, the dispersion is between 12 and15 per cent on the wage rates, depending on the capacity of the employer. And, I might add,over and above that, the length of each agreement is radically different: in some cases youwill have those payments being made in a 2½-year framework; in some other instances, whenyou take the amount of time that was required to negotiate the agreement, you could be look-ing at paying the same amount over a 3½-year period. Whether it is intentional or not, I do not



know, but the fact is that the bill, as it is presently constructed, would automatically render itimpossible for our union to defend those standards across the sector, particularly in an envi-ronment where we have no recourse to the commission.

Secondly, that needs to be contrasted with the way in which we are being treated by theCommonwealth government. Although it is no longer our employer, and although the systemhas now been fundamentally deregulated so that less than half of the total income of our sec-tor comes from government sources, nonetheless the government has taken it upon itself topolitically bully and financially blackmail institutions, employers, into pursuing a pattern bar-gaining agenda on the Commonwealth’s behalf which goes to things like non-union repre-sentation; reducing the size of university councils, including external representation and staffrepresentation; prohibiting agreements from having job security clauses; requiring agreementsto abolish promotion on merit; and a range of other punitive requirements. So, on the onehand, this bill would deprive our union of the capacity to defend minimum standards, notcommon outcomes, by pursing common claims. But, on the other hand, it is being introducedin a climate where the government itself is seeking to impose a highly rigid framework on thesector.

In conclusion, it is quite obvious that the bill is one-sided, not only for the reasons that Ihave enunciated in our sector, but because the commission must have regard to the opinionsof employers in these matters but will not have to have regard to the opinions of others whomight want to make submissions about that. So, as my final comment, I would pose somequestions for the authors of the bill. Why does the bill focus on common claims, not commonoutcomes, if the argument is that you are opposed to pattern bargaining, which, I hasten toadd, we support in any event? Why does the bill give obvious one-sided treatment by allow-ing employers’ views to be given greater weight than the views of other parties? Finally, if thecommission is given powers to terminate and/or suspend the bargaining period, then why doesit not also have the discretion to resolve the dispute on a full blooded basis? We believe thebill should be rejected.

Ms James—The Independent Education Union represents some 44,000 members in non-government education around the country. We cover all classifications of employees in non-government education from school principals to teachers, to ancillary staff, to school secre-taries, to cleaners, ground staff and canteen workers. We oppose the bill, believing that ourmembers will be disadvantaged as the bill unfairly tips the balance further in favour of em-ployers and diminishes the bargaining power of employees in non-government education.

We routinely and shamelessly engage in industry wide bargaining in the non-governmenteducation industry. The best example I can give you of that is Victorian Catholic schools.There are over 500 individual employers running Catholic education in Victoria. Currently,the union makes a common claim on all of those employers and notifies 500 separate bar-gaining periods. We then proceed to negotiate as collectively as we can with an organisationrepresenting the 500 employers to come to an outcome. Industrial action has been taken insupport of the claims and we then we seek to certify a multi-business agreement. We want tocontinue to be able to do that without any diminution of our rights, any disadvantage or preju-dice to our members. It is certainly and surely in the interest of quality education and equity inthe profession that the outcomes are the same across schools and, indeed, other areas of non-government education.

In the ELICOS industry, that is English Language Intensive Courses for Overseas Students,there are colleges in New South Wales where we collectively pattern bargain with employersin the ELICOS industry. It is the preference of employers in that industry that the same



agreement is made. We go to the trouble of initiating separate bargaining periods. We negoti-ate with individual employers and then we come up with mirror agreements. Forty-five sepa-rate federal certified agreements have been made, and they are identical. This is what employ-ers in that industry want.

Catholic school employers want to pattern bargain, and they regularly engage with us inthat. Indeed, the Victorian Catholic Schools Association took the unprecedented step of put-ting in a joint submission with our Victorian branch—and I think that submission has beensubmitted to this inquiry—expressing concern about the proposed amendments to the act.However, there is a concern that the union has that when employers are pressed they will lookfor avenues to relieve the pressure. Although Catholic school employers, by way of example,do not as a matter of principle oppose pattern bargaining or industry wide bargaining, in adifficult bargaining situation, if there is some out to them, we cannot guarantee that it will notbe taken.

In 1997, we mounted a campaign for parity of wages with government schools in Victoria.For three weeks we picketed outside the Catholic Education Office. Work bans were in placein the 500 schools. When it got really tough the employers stopped our payroll deductions.Why would we trust employers in this industry to not run down to the commission, cry pat-tern bargaining, and get the bargaining periods suspended and render our industrial actionunlawful?

Senators, the union urges that you reject this bill. It will cause us difficulty.CHAIR—Thank you.

Mr Durbridge—On behalf of the Australia Education Union, which represents more than150,000 teachers and other educational workers in all states and territories, we cannot help butthink that this bill must be a miscue, it must be doing something other than what it is said tobe about because it will strike at the essential business of our union. Every year we hold afederal conference. At that conference, as you would, you talk about what sort of money yougot last year and what you will go for next year, or what working hours.

We develop a national claims framework. We follow it in New South Wales, Queensland,South Australia and the ACT. We do not get the same outcome, but it is a target, it is a set ofgoals, and it is a bargaining set of claims. That is the essential business of a union and itwould be rendered unlawful under the act. If we followed the procedures under the act wewould be penalised for so doing. We would have our bargaining periods terminated; our pro-tected action would be no more.

We are not always opposed to the termination of bargaining periods; 170MX was insertedinto the act for areas of employment such as ours. We have sought to terminate the bargainingperiod and so have the employers in our industry. That mechanism is appropriate in our view.But to introduce into the act a series of provisions which shamelessly tip the balance in favourof the employer, take notice of the employer’s view, prevent unions doing what they have al-ways done and what they were formed for—that is, collectively determining on the basis ofone’s profession, one’s trade, one’s calling, one’s industry or one’s employer; I put that onelast—is to strike at the very basis of what we are all about. If it is made law, we will be re-sisting it to the nth degree.

I would like to draw attention to some specific areas of our membership which would beparticularly disadvantaged. The Victorian early childhood sector is composed of 1,200 sepa-rate employers. They employ between one and three kindergarten teachers. Are they not al-lowed to—or will they be open to penalty if they pursue their interests in other than a claim



against their single employer, who themselves are nothing more than a community committeefunded by the Department of Community Services and told by that department how muchthey will pay us? It is absurd and just highlights what I cannot help feeling is the miscue thathas occurred between what we are told is some huge proletarian uprising in Victoria, and theactual effect of it which is kindergarten teachers who work in the backblocks of Victoria, andmany other effects.

The other main area is TAFE teachers who work, as you may know, for separate employersthroughout that state of Victoria and who would also not be able to so-call pattern bargain.There is nothing more dear to people in our profession, and I heard the nurses say the samething. We can tell them otherwise, the government can tell them otherwise, the political par-ties could tell them otherwise, but in my opinion nothing will change our members’ view thatthe work they do in New South Wales or Queensland, or in the private sector, public sector orthe ACT, is not worth the same money because it is the same work. That is something that isunchangeable and will continually lead to problems if so-called pattern bargaining, commonclaims, are eliminated in the way that this bill would seek to do.

I would also like to say that we would not take the view that, if it was thought that somesectors could be quarantined from the effects of this bill, we would be happy with the rights ofsome, because a right of some turns into a privilege of others and we would not like to godown that track. Thank you, Senators.

Senator MURRAY—I am going to address this question to all of you at once if I can be-cause I am short of time. The unions have made very clear what problems they have with thebill. To my mind that throws up some prospects for change. The key and core question all ofus have to address—you on your side of the table and us on ours—is what the very capableand experienced head of the Metal Workers Union, Doug Cameron, said is the debate we haveto have.

Strike action is expressly permitted by law at the enterprise. Common claims and commonexpiry dates for enterprise agreements will enable industry-wide protected action includingthe right to strike to occur. No federal or state coalition or Labor government has legislated toexpressly allow industry-wide strike action. That sits behind this debate—the fear of industry-wide industrial action which includes heavy strike action, not necessarily by people at the ta-ble. What I want to know from you, because I know that you, like us, support strike action atthe enterprise—and by ‘us’ I mean the parliament—is: is there anyone at this table who op-poses industry-wide or general strike action being available to workers?

Ms Chambers—I make the point, though, that the legislation as it currently exists doesprovide checks and balances against industry-wide industrial action. In my view, the currentproposed bill does not deal with proposed industrial action; it talks about claims being pur-sued. In any event, if you are talking about industry-wide industrial action, firstly, if it has theeffect of harming a section of the economy, there is a capacity for that bargaining period to beterminated leading to arbitration by the commission. If industry-wide bargaining is harmingthe health and safety of a part of the population, the bargaining period can again be terminatedand an arbitrated outcome exists. So currently there are checks and balances in the existinglegislation. If the concern is with Campaign 2000 and industrial action occurring across anindustry that may have an impact on the economy of a state, then there is currently provisionin the act for the bargaining periods to be terminated for the commission to be seized of thematter to conciliate and then arbitrate.

Senator MURRAY—What I heard was a deafening silence to my question. I would haveexpected you to answer, yes, you do support an industry-wide and general right to strike.



Mr McCulloch—I will have a go at it. Yes would be the answer, of course. Any self-respecting trade union official would believe that, in some circumstances, particularly if thereis a good case for common standards, that an industry-wide approach is quite appropriate in-cluding, if necessary, coordinated industry-wide industrial action. But, and the but is very im-portant, the whole drafting of the legislation and the question itself proceeds from a false as-sumption, and that is that common claims lead to common expiry dates and that those com-mon expiry dates can then be used—

Senator MURRAY—Let me interrupt you. My question was very specific. I said the com-bination of common claims—and I deliberately wrote it down and read it out so there couldbe no misunderstanding—and common expiry dates for enterprise agreements enable indus-try-wide protected action, including the right to strike, to occur. It is the combination of thetwo.

Mr McCulloch—Yes, but the bill does not do that.

Senator MURRAY—I am not referring to the bill; I am referring to the debate which liesbehind it. There is a specific point that Doug Cameron made, and very rightly so. My questionto you, to enable us to view this thing in context, because I clearly understand your criticismof the bill, is how you feel about that fear which lies behind the government’s proposal.

Mr Durbridge—I think that came with the territory. We used to have a system where thecommission had powers in all sectors—not just in so-called paid rates employment areas—where disputes could be taken to the commission and the matter dealt with. When theadvocates of the brave new world legislated, and you quoted Paul Keating, to deregulate thelabour market, we were told that the interests of all would come forward and in some mysticalway there would be formed common outcomes and everyone would be better off. We werenever told that you can talk to only one employer at a time and in the US, which is the modelthat this is based on, that is not the case. It came with the territory, when you weakened thepower of the commission to arbitrate, that we would support industry-wide strike action.Remember that those existing agreements had been agreed to in the previous round. Theywere not forced on employers; they were a product themselves of the previous round ofnegotiation.

Senator MURRAY—I had better make this my last question, or do we have lots of time?

ACTING CHAIR (Senator CARR)—We have five minutes.

Senator MURRAY—Just for clarity’s sake, with regard to education and health where theemployer is a government, is each hospital and each school regarded as an enterprise in termsof current negotiations, or is it a sector approach because it is one employer?

Dr Jardine—That would vary state to state. If you look at the legal theory, and it can beextremely complex, health you could have hospitals as employers for certain purposes but notothers.

Senator MURRAY—So sometimes in an enterprise agreement it will be multisite andsometimes it will be single site. Is that right?

Dr Jardine—That is true. Both may exist together. It is not that uncommon in areas—health, education or others—to have a broad agreement with room for subsidiary agreements.It is the sort of question that Senator Ferris raised, which we dealt with some time ago in NewSouth Wales: the broad agreement about the sorts of options open, not just to women workers,and then there was room for subsidiary negotiations and agreements at departmental, areahealth or what have you level. It just does not present as a simple dichotomy. It is almost a



sense of: ‘What is the issue?’ before we could tell you at any given point of time who is actu-ally behaving as the employer or the enterprise.

ACTING CHAIR—We only have a few minutes. Perhaps I could just clarify a few things.As I understand it—correct me if I am wrong—this bill does not necessarily outlaw patternbargaining. What it outlaws is the capacity to pursue a claim on an industry basis. Would youor would you not agree?

Dr Jardine—Yes. As far as the union is concerned, there seems to be no inhibition on em-ployers pursuing pattern bargaining by whatever means they think fit.

ACTING CHAIR—Is that the view of you all?

Dr Jardine—Yes.

ACTING CHAIRMAN—I think the committee needs to understand what impact that hason your capacity to pursue claims on behalf of your members if on one hand you are told youare allowed to, but on the other hand you are told you are not allowed to actually pursue themwith any force. Is that the circumstance we are talking about here?

Dr Jardine—Yes. One of our concerns would be that that would seem to extend to limitedindustrial action about something which might be encompassed in a very broad claim that wehad made. We are not necessarily looking at Australia-wide national action in support of ournational policies. This would seem to inhibit us from taking action in support of any aspect ofthose claims, merely because there was some common claim originally.

ACTING CHAIR—Mr McCulloch, could you indicate to the committee the nature of thegovernment’s workplace reform program within the higher eduction sector? You have out-lined briefly what it is, but is it the case that there are a number of common projects that auniversity employer must greet? What is the nature of those? How many of the set has thegovernment appraised?

Mr McCulloch—There are 15 criteria that the government has set down for its so-calledworkplace relations reform program in higher eduction. Those criteria have been jointly de-veloped, on the one hand, by DETYA and, on the other hand, by Peter Reith’s department. Inexchange for satisfying nine of those 15 criteria, the government says that institutions are thenentitled to receive from it their share of a $260 million grant that the Commonwealth hasmade available for that purpose.

The guidelines themselves were introduced halfway through the bargaining process, sothose parties who had already concluded their enterprise bargain before the workplace rela-tions reform program came into being are automatically excluded from a capacity to sensiblylook at those guidelines with a view to determining whether or not they can have them ab-sorbed or can get the money. But, perhaps more fundamentally, the guidelines themselvesactually go to matters that would ordinarily be within the discretion of an employer. It is animportant distinction between the university sector and other sectors represented here thateach individual university is the employer. The Commonwealth is not the employer, yet theCommonwealth is requiring a commitment that there shall be no job security clause in theagreement and no clause that can prevent job losses; that there must be AWAs; promotion onmerit for academic staff must be abolished; you must reduce the size of your governing coun-cils; you can have no restrictions on casual or contract employment; and, most particularly,from our point of view, despite the fact that we are told the award system is meant to operatein conjunction with the enterprise agreements, one of the requirements is that the agreementsmust be closed and comprehensive and completely displace the award system—not the ordi-



nary provision; if there is something that is not inconsistent with the agreement laid out andaward it will stilly apply, but you must consciously exclude the operation of all award provi-sions.

ACTING CHAIR—So there is a capacity to propose a sanction in that regard?

Mr McCulloch—That is right.

ACTING CHAIR—Dr Jardine, has a similar pattern been established with the federalPublic Service? Has there been any sort of behaviour that meets that criteria?

Dr Jardine—Yes, and with the state public services. That is the sort of thing that is quitestandard, that there is an overall agenda—

ACTING CHAIR—Is there a section associated with that pattern bargaining by the em-ployers?

Dr Jardine—It is always the funding sanction in our area.

Senator JACINTA COLLINS—Dr Jardine, further to your comment, I want to clarify, inrelation to all of you, whether your concern is similar to that raised by the Finance SectorUnion before us on Friday. That was that, regardless of how you might characterise the lim-ited definition which refers to whether matters are capable of being pursued at a single busi-ness level, the Finance Sector Union saw the problem that, in taking industrial action, theycould potentially be caught up at any time in relation to, as you have said, one component of aset of common claims and that that in itself and the commission work involved would impactupon their bargaining capacity? Would that be common to all of you?

Dr Jardine—Yes.

Ms James—Yes.

Senator GEORGE CAMPBELL—My question goes to that issue but it is slightly differ-ent. In terms of the pattern of claims across your specific industry sectors, what percentage ofthe range of issues that you would claim in a normal set of negotiations would be of such acharacter that they would not be capable of being negotiated at a single enterprise?

Mr Blake—For nursing, none. We have a common claim across the profession, whereverthey may be employed.

ACTING CHAIR—For the Hansard record, are you saying for each of the industries yourepresent here today that that applies, that it is the same as for the nurses?

Mr Durbridge—I cannot think of one.

Ms James—Nor can I.

Senator GEORGE CAMPBELL—So in all of those areas there would not even be a lim-ited capacity for pattern bargaining, even in a very limited form on a number of issues, as de-fined in the act? In fact, every issue would be capable of being pursued at a single enterprise,given the difficulty with defining what a single enterprise is in the public sector, but settingthat aside.

Dr Jardine—One of the problems is that there is a gap between what is legally possibleand what is practically possible or financially possible. I think that no matter what we weredoing, you can see capacity to undermine what we were after and our capacity to get it.

ACTING CHAIR—There is one final question that Mr Durbridge posed to us in his sub-mission. He said you could not understand the reason behind the government’s intentions



here. The SDA put a submission to us and said that the very breadth of the definition wouldappear not to be an error or an accident but, rather, a deliberately device to effectively destroythe entire operations of the provisions concerning the initiations of bargaining periods and thetaking of protected industrial action by any union at any stage. To what extent would youagree with that proposition?

Mr Durbridge—I do agree with it. I did not say I could not understand it; I said I thoughtit must have miscued—they must have been aiming for one ball but hit a whole table full.

ACTING CHAIR—I see.

Senator GEORGE CAMPBELL—Actually aiming for two balls.

ACTING CHAIR—Thank you very much indeed for coming today. I apologise for theshortness of the time available.



[4.04 p.m.]FREEBURN, Mr Lloyd Douglas, Assistant General Secretary, National Union of Work-ersLYONS, Miss Susan, Federal President, Equity Division, Media, Entertainment andArts AllianceWHIPP, Mr Simon, National Director, Media, Entertainment and Arts AllianceSWANCOTT, Mr Neal Walter, National Industrial Officer, Australian Liquor, Hospital-ity and Miscellaneous Workers UnionTIGHE, Mr Peter Anthony, National Secretary, Communications, Electrical andPlumbing UnionWOOLGAR, Mr Tony, National Secretary, Textile, Clothing and Footwear Union

ACTING CHAIR—Welcome. The committee has before it a submission from each ofyour organisations. Are there any corrections or changes you would like to make to the writ-ten submissions?

Mr Freeburn—Senator, I file on behalf of the union a more detailed submission that wewould seek to replace our initial submission with. I have provided copies of that to the secre-tary of the committee and emailed it to the committee as well.

ACTING CHAIR—The committee prefers all evidence to be given in public, although thecommittee would also consider any requests for all or part of the evidence to be given confi-dentially. I point out that such evidence may subsequently be made public by order of theSenate. I now invite you to make a brief opening statement and then the committee will askyou questions. I do draw to your attention that we have 45 minutes for the entire group, so Itrust the statements will be brief.

Miss Lyons—I would like to explain how the government’s proposed changes to theWorkplace Relations Act to prevent standard industry-wide enterprise agreements will affectme and my peers working in film, television, radio, live theatre, commercials, and those doingcorporate gigs, working in nightclubs and RSL clubs. I work predominantly in film, televi-sion, radio and live theatre. Every time I sign up for a job I know in advance what the termsand conditions will be. All my agent really needs to negotiate is whether I can earn above theminimum rate of pay or not.

Why do I have an agent? It is basically to field the offers and inform me of work opportu-nities. All performers in this country now operate in a freelance industry. This means that thekind of work I do can range from a five-minute job recording a voiceover for a radio station,to a role in a feature film where I will have continuous employment anywhere from one dayto 10 weeks, to a role in a television series where my job can last again for a day or two or upto six months, or a role in a stage play where I might be continuously employed for eight to12 weeks. For producers to find me and for me to find out what work is on offer, the produc-ers need for me to have an agent. This makes me easy to find and it makes it easier for myname to be suggested for any forthcoming work for which I might be suitable.

But back to the conditions of my employment. As I said, I work mainly on feature films,television series, radio and in plays. Each of these kinds of work is covered by an enterpriseagreement. There was a template agreement negotiated between the union and the employerorganisation. Each individual employer then signs up to the enterprise agreement. So I know



in advance that whether I get a role on Water Rats or Halifax or Grassroots or All Saints I willbe entitled to a lunch break after five hours, I will be entitled to overtime after eight hourswork, I will be entitled to have somewhere to change into my costume that is private and not,let us say, on the sand at Palm Beach in front of the gazing eyes of British tourists visiting thepeninsula to look at the sand of Summer Bay, though that was seriously suggested to me at ashoot on North Curl Curl last year.

I also know that the producer will not revoice my performance without my consent, makemerchandise for my performance without my consent, and will not ask me to perform nudewithout discussing that with me before I take the job, on a good day. My agent does not haveto negotiate these terms and conditions for each and every job every time I am offered a jobthat might last, say, one day. If my agent or I had to negotiate those terms and conditions eachand every time I work, the negotiations would take longer than the employment on offer. Itcould not work for me, and it will not work for the employer either.

The current arrangements offer certainty to employers and employees. They most certainlyoffer efficiency for employers. If an employer had to negotiate every term and condition withevery actor and every technician on every production, they would need considerably moreproduction staff and considerably longer to set up their productions. A TV commercial typi-cally takes between four hours and three days to film. They will typically have a week or lessto organise it—the production company that is—find the locations, book studios, hire techni-cians, cast the right actors and negotiate everyone’s contract. Depending on the size of thecommercial, that could be contracts for between 20 and 120 people.

To do this efficiently they rely on knowing what are unarguably accepted terms and condi-tions. All that needs discussing is money and when and where the cast and technicians need towork. The proposed changes to prevent standard industry agreements will paralyse the indus-tries in which I work. It would be ironic that a government which in its latest budget restatedits commitment to a buoyant film and television industry with continued financial support andcommitted itself to a massive increase in funding to Australia’s major performing arts compa-nies of $43.3 million over four years should see this resolve and its supporting dynamic, effi-cient and productive companies undermined by these proposed changes.

Performers already lead a highly insecure financial and industrial existence with at least 85per cent unemployment amongst performers at any one time and continued employment de-pendent on ratings and box office success, performers need some level of certainty about theiremployment. I just ask that the one security we now possess that guarantees us basic condi-tions of work and safety is not taken away from us. Thank you.

Mr Woolgar—I would just like to start off by saying that the definition of pattern bar-gaining in the bill is so wide that it will catch up with the routine process of enterprise bar-gaining that is currently practised by the textile, clothing and footwear union. The definitionof pattern bargaining contained in the bill will also prevent the union from pursuing industrynegotiations such as establishing an industry-wide trust fund for employee entitlements. Thefragmented nature of the TCF industry, both with regard to the size of firms and sector struc-ture, means that negotiating business by business is inefficient, unjust and ultimately ineffec-tive in an industry such as ours. This leaves the low paid workers in the TCF sector more vul-nerable to downward pressure on their wages and conditions.

The TCFUA directly represents around 27,000 members in factories or workshops of theTCF sector. In addition, the union plays an advocacy role for many thousands more workersin the largely unregulated part of the sector which is characterised by exploitation, sweatshopsand outwork. We believe that our ablity to secure justice in wages and conditions for TCF



workers is under serious threat as a result of this bill. The bill’s attack on multi-employer bar-gaining, which is used as a legitimate industrial strategy throughout OECD countries strikes atthe very instrument that ensures the weak of the labour market are protected.

We say that the amendments will undermine our current bargaining strategy. At this mo-ment my union makes a number of common claims in enterprise bargaining practice. Theseexamples include: wages, where the TCFUA makes a common claim for pay rises in enter-prise agreements; consultation on major changes in the workplace; recognition of workplacedelegates; the registration of redundancy agreements; interpretation of significant informationinto the first language of the employees; access to unpaid leave for workers with familiesoverseas; and trust fund arrangements to protect workers’ accrued entitlements in the event ofemployer insolvency. This practice clearly falls within the definition of pattern bargaining inthe bill.

So why is it wrong for us to do this? Our members want us to bargain on things which arecommon to more than one workplace. Why should protected industrial action be denied to ourmembers if the same issues come up in more than one workplace? Very few issues of wagesand conditions are limited to one workplace. How much time and space must there be be-tween claims before we can raise the same issue with two or more employers? The federalgovernment has answered none of these issues. The amendments will undermine our capacityto develop new industry standards. There are some issues that simply must be dealt with on anindustry level. An example is the protection of employee entitlements in the event of em-ployee insolvency.

In the wake of far too many examples of TCF workers losing some or all of their accruedentitlements in company insolvency we have an obligation to pursue a remedy on an industrybasis. A natural part of this process is to claim a system of protection such as trust fund ar-rangements on multiple employers. The amendments will prohibit any campaign involvingindustrial action in support of this claim.

The second example is award skill levels. Award skill levels in the TCF industry go to theequivalent of trades level and just above. This means that workers with higher skills have nominimum wage rate appropriate to their skill level. This is an industry-wide issue because it isin everyone’s interest to have minimum wages set for known training incompetency acrossthe industry. It avoids competition on the basis of forcing down rates. The ability of the unionto establish standards on emerging industrial issues is already severely limited by the allow-able matters prescribed in section 89A of the act. The ability to make multiemployer claims isthe only viable way of bringing forward new issues vital to working people. Why should wenot make common claims on employers for an improved career path or a system to protectemployee entitlements, and support them if necessary with an industrial campaign if negotia-tion has been exhausted? Employers will frustrate the development of these standards byclaiming that it can be addressed one company and one enterprise bargain agreement at atime—the bill, an automatic prerogative of the needs of any one company over the needs ofworkers across an industry.

In conclusion, I would just like to give an example in relation to outworkers which thiscommittee is quite familiar with. In the years that preceded the creation of the three clauses inthe clothing trades award, known as clauses 26, 27 and 27A, which bring award protection foroutworkers, common claims were made on the employers in the industry. This was an essen-tial part of the bargaining process because of the fragmented nature of the industry and theimpossibility of dealing with each employer of outworkers individually. It was necessary totest what it was possible to achieve in negotiation and it set the groundwork for the claim for



award clauses in the Industrial Relations Commission. We say that if this law had been inplace we could not have achieved minimum award standards for outworkers and those work-ers would be far worse off than what they are today. Thank you, Senators.

Mr Tighe—Thank you, Senators, for the invitation to the CEPU to support its writtensubmissions verbally before you. Firstly, an explanation of the CEPU. The CEPU is arguablyprobably the largest occupational union in Australia. We represent people in the electricalfield of employment, the plumbing field of employment and the communications field of em-ployment. Large parts of that sector are deemed to be contracting industry areas. What I wantto do today is take you to an example of pattern bargaining, a microcosm of one of those areasand how successful it has been, and the support that it gets not only from the employees andthe union itself but also from employers in that sector and the benefits it provides to that sec-tor in its own right. Much to-do has been made about Campaign 2000 and the evils it mightvisit upon industrial relations in the state of Victoria and, as it flows to Campaign 2001, inother states. But, in fact, enterprise bargaining does not necessarily deliver impossibilities orindustrial disruption to industrial relations or industries in Australia.

Firstly, let me go to the question of what this amendment bill seeks to do. It seeks to com-plement and improve the Workplace Relations Act. The objects of the Workplace RelationsAct clearly say that it is to provide for cooperative workplace relations and defines that moresuccinctly in a number of different parts. It is our view, and the view of employers in our in-dustry, that the contemplated amendment bill will certainly not increase the cooperative in-dustrial relations in our industry. It will certainly seek to dictate to what we can do rather thanfacilitate an outcome which the industry accepts broadly from both the employees’ and theemployers’ point of view.

If I can take you to a microcosm of our contracting industry and focus on the electricalarea, which our written submission focuses on, Victoria is part of a national industry sector.The contracting industry pervades across a number of industry sectors. It covers the installa-tion, maintenance and repair of wiring and electrical equipment; areas of the manufacturingindustry, the metal industry and the construction industry—in its forms of building, civil andengineering; the power distribution and generation of electricity; and the service sectors thathave grown quite recently in Australian industry.

The industry itself is made up of small businesses. In fact, 90 per cent of employers in theindustry have less than 20 employees in their firm. In fact, 60 per cent of employers in theindustry have five or less employees. It is your persona of small business in Australia.

Pattern bargaining has been very successful in that industry. It has been supported by theindustry association and individual employers. It is quite important for the contracting indus-try in Australia in all its definitions—plumbing, electrical and communication—to have whatis referred to as the level playing field. There needs to be uniformity of rates of pay and con-ditions to allow employers to contract on their expertise and the productivity of their com-pany. That productivity is allowed within the terms of the pattern agreement that has beenachieved in the sector.

Recently, Victoria finalised its second round of pattern bargaining, and some 1,500-plusagreements were reached with employees in that sector. Those agreements cover approxi-mately 8,000 employees who are employed by approximately 3,000 registered electrical con-tractors. Some 1,500 contractors are members of NECA. The union itself has over 2,000 reg-istered electrical contractors who are members of the union in their own right.

The process for delivering a pattern bargaining agreement has been on the basis of a uni-form claim made across the industry and framework negotiations entered into on behalf of the



totality of the industry by the peak employer organisation, NECA, with facilitation provisionin the agreement to allow different work organisation outcomes at each of the industry sec-tors. It was done in the lead-up to the end of the millennium.

Much to-do has been made about the industrial turmoil that would be created if patternbargaining becomes widespread and much to-do has been made by the AIG that it faces apossibility of pattern bargaining in the metal industry into the future. One thousand five hun-dred agreements were reached over a period of three months or four months, with very littleindustrial disruption at all. They put in place regulated forms of labour for the industry to al-low it to reach the outcomes that it wishes and, at the end of the day, they were well receivedand well supported by the industry in its own right.

In the short time that we have had to prepare submissions to this Senate committee, wehave asked our constituents on the employer ranks from the other side of the sector to seek togive us letters of support and, in fact, make submissions to this review committee in relationto the benefits that they see as employers in the industry. In the short period of time, as I havesaid, since we were notified that we would be able to appear today—that is, late Friday after-noon and midday today—we have received at least a dozen letters. We would likely be able toproduce hundreds of letters, given a period of time to facilitate that.

If I could just take you to some of the comments made by employers in the industry aboutthe benefits they see to pattern bargaining, they might give you some insight about what it islike in the real industrial relations world. The first quote comes from the President of the Na-tional Electrical and Communications Association’s Victorian chapter. It states:Pattern bargaining is essential to the wellbeing of our company, employees and the industry in Austra-lia.

That is from one specific company. Another quote reads:We never wanted to lose our paid rates award in the first place. With the assistance of the NationalContractors Association and the ETU, our industry has been able to increase wages and conditions andproductivity with minimal industrial disruption. A free-for-all approach to enterprise bargaining in theelectrical and communications contracting industry will see massive union gains where they are in thebest bargaining position and minimal gains or no gains for those that are weak.

I reinforce to you that most employers in that sector are very small employers. My final quoteis again from an electrical contractor:Our industry has small profit margins at the best of times. Please do not let our industry agreement bereplaced by a free-for-all approach which will destroy companies like ours. I urge you to reject PeterReith’s changes and to assist us by allowing genuine industry agreements.

Those are some quotes that have been generated, as I say, in less than one working day. I cantell you, from the perspective of my union, that that is not just a small microcosm of peoplewho are aligned with the employer association. They are from a broad group of contractorsoperating in Victoria.

As I say, it is something that has been supported by the industry. It has had two rounds ofpattern bargaining agreement, and I do not know any headlines that say that the industry andthe economy of a specific state have been destroyed by people taking forward a pattern bar-gaining agreement. I am not an apologist for it. In some industry sectors it is essential. Spe-cifically in the contracting industry it is a very important component of bargaining in relationto wages and conditions of employment.

Mr Freeburn—Because of the time, I will try to get through as many points as I can. Iapologise if it appears that I am speaking in point form but the points I wish to make are dealt



with more completely in our written submission. The first point that we would like to make isthat this legislation is not just about pattern bargaining. There are a number of other mattersdealt with in the bill which are fundamental to workers’ capacity to collectively bargain, andall of those matters fundamentally undermine workers’ capacity to collectively bargain. I willdeal with them briefly.

The first point is the introduction of a cooling-off period. This was a feature of the 1999bill and it was dealt with in the inquiry into that bill. We made submissions in respect of thisaspect of that bill and we repeat those in our submission. It is our submission that suspensionof bargaining periods is clearly a device to remove the ability of workers to take action in pur-suit of or to defend their interests. The suspension of a bargaining period has no rational ten-dency to resolve a dispute. It simply favours an employer by denying the employees the rightto pursue their claims.

If I can use a metaphor, it is the equivalent of proposing to settle a fight between two peo-ple by tying one person’s hands behind their back and allowing the fight to proceed. That isthe metaphorical equivalent of this legislation, both in respect of the suspension of bargainingperiods and also in respect of the amendment of the section 127 provisions.

Just on a few other points in respect of the suspension of bargaining periods, as Dr Peets,and various others, in the 1999 bill inquiry noted, such a proposal is antithetical to a system ofcollective bargaining. It is misleading and wrong for it to be claimed that bargaining periodswill only be suspended in the case of long-running disputes; that is simply not a feature of thebill. It is not a criterion at all.

It is also disingenuous to describe cooling-off periods as cooling-off periods, because inour submission it says that the removal of one party’s rights, which is what a cooling-off pe-riod is, will do nothing to cool any party down but will in fact be likely to exacerbate tensionsand to bring more heat into a dispute.

In respect of the proposed amendments to section 127, we make the same sorts of points. Iwill leave it to others to deal with how those provisions further contravene ILO conventions.But we do note that the provisions would render any reprehensible conduct by employers ir-relevant. The commission will find that it will fundamentally be denied its discretion to con-sider one party’s conduct. The commission will basically become a rubber stamp for the is-suing of orders.

There are no grounds for any allegation that the commission is not dealing with applica-tions under 127 properly now. That matter was dealt with in the 1999 bill inquiry. In fact,there are now a large number of vacancies in the number of members of the commission andwe say that it is extremely hypocritical for the government to criticise the commission for anydelays. We are not aware of any, but were there any, it is extremely hypocritical for the gov-ernment to criticise it for those delays having failed to fill a large number of vacancies in theranks of the commission members.

The reversal of the onus in terms of seeking an order under section 127, is a reversal of thenormal burden of a case. It will be for the unions to proceed before the commission and try tomake out a case as to why an order should not issue. There is a presumption in the legislation,or will be if the bill is passed, that an order issue.There will be serious issues of confusionbecause, under the provisions, an order may issue even without a hearing, and if a section 127order is issued against a union where the action is protected but the commission will have nochoice but to issue an order because the 48 hours has expired for some reason, the employeesin those circumstances will be faced with an order against them by the commission to cease



their industrial action, and yet they will have a surviving legal right to take protected indus-trial action. That is a farcical situation.

The proposed restriction in section 170MTA on ability and powers of the Federal Court toprotect the rights of bargaining parties while allowing employers to use the processes of sec-tion 127 and under common law to coerce workers, ought be condemned, because that is whatthat proposal is. The cases which that provision is aimed at—the anti-suit type cases—arecases where the Federal court has found a prima facie case that employers were seeking to usethe provisions of the common law, for example, to coerce workers to accept a bargaining po-sition of the employer. The proposal to prevent the court from making those sorts of orders isunjustifiable.

In respect of pattern bargaining, I wish to make four brief points. I have been racking mybrains to think of a claim that it is possible to say is not capable of being pursued at the enter-prise level. There is no single claim that we make, there is no single claim in any enterpriseagreement that we have and there is no single claim in any award that I am aware of that isnot capable of being pursued at the enterprise level. The definition, therefore, of pattern bar-gaining catches everything. It catches what we do. We have a policy of pursuing comprehen-sive agreements at individual site levels. Wherever we have an enterprise agreement we seekto have all of the relevant terms and conditions contained in that enterprise agreement, in-cluding terms and conditions which are derived from awards. Under this scheme we will beprohibited from doing that; we will be prohibited from pursuing those claims.

The exemption for terms and conditions which give effect to full bench decisions is almostmeaningless. It will cover only about a handful of award provisions. Similarly, I made thepoint that the so-called exemption in the note to the definition exempting claim clauses inprevious enterprise agreements will also be meaningless because all of those clauses are ableto be pursued at the enterprise level. Given the time, that is all I would seek to say.

Mr Swancott—The LHMU put in a written submission with attachments that support thethree main prongs, if you like, of its rejection of the bill. It is not my intention to take you tothem in detail, or to quote them back at you. I recall, however, that the three areas that theunion objected to in relation to this bill were, firstly, that the bill was discriminatory becauseits effect was to outlaw so-called pattern bargaining—that is, the collective bargaining rightsof employees and their unions—while, at the same time, putting no similar restrictions onthose employer interests that engage in the same behaviour that this bill is directed at.

The second group of arguments comes under the heading of divisiveness. The union arguesin its written submission that the bill is divisive because it threatens industrial stability by at-tacking longstanding consistency and core working conditions within an industry. Thirdly, theunion argued that the bill is contrary to the public interest because its effect will be to encour-age wage cost undercutting in contracting industries and industries such as child care whichrely on government funding. The legislation will consequently threaten continuity of em-ployment, particularly in relation to small businesses in contracting type industries.

It has been our experience as a union, and mine as a representative of unions, that legisla-tion or rules directed at particular issues, which are broadly expressed, have the tendency tocause collateral damage. In relation to this legislation and the membership of my union, thatcollateral damage will be caused to some of the employees who are the most vulnerable in thework force, particularly child-care workers whose employers are dependent on governmentfunding and who have traditionally sought to negotiate as an industry to protect themselvesfrom undercutting. The same applies to contract cleaning: my union has traditionally negoti-ated at an industry level to provide a proper level playing field to discourage employers from



seeking to get the competitive edge in the tenders they make by screwing down on vulnerableworkers’ wages. It may not have been the intention of the framers of this bill to cause the col-lateral damage that we sought to outline in our submission, but it will be the effect.

The union, for example, has currently a policy in relation to the casino workers of fightingto reduce passive smoking amongst its work force in casinos. Those of you who frequent ca-sinos, particularly in this city, may have noticed the level of passive smoking—if you are notsmokers already—when you go in it. That is an industry-wide campaign that we are about tomount with degrees of success and the casino is one example.

Section 170LGA(2) uses the word ‘all’ in relation to claims that can fall within this defini-tion of pattern bargaining; in other words, it is absolute. In our experience, equity cannot dealin absolute terms. A tribunal of equity must have the discretion to deal on a case by case basiswith the situations that are before it. Blanket rules directed at, for example in this case, Cam-paign 2000, which have unforeseeable widespread effects on people not remotely connectedwith Campaign 2000 are, for the reasons we have set out in our submission, unacceptable andshould be rejected. In view of the time I will not continue on this opening submission.

Senator MURRAY—Mr Woolgar, you have said that the definition is so wide that itcatches up routine processes. I gather that you would add the word ‘workable’ to routine pro-cesses.

Mr Woolgar—Sorry, Senator, the word ‘workable’?

Senator MURRAY—They work and they are effective—the things you are doing now.Somebody at the table earlier—I think it was Mr McCulloch—said that the focus should notbe on the definition of pattern bargaining in terms of common claims, but in terms of commonoutcomes. What difference would that make to a definition or are there still just as manyproblems with that approach?

Mr Woolgar—We do not have too many common outcomes in enterprise agreements. Wehave common claims but not necessarily common outcomes.

Senator MURRAY—So if, for instance, the definition says that pattern bargaining wasdetermined by whether there were common outcomes, you would look at it differently orwould you still have concerns?

Mr Woolgar—We have common outcomes from the most vulnerable workers in our sec-tor. The most vulnerable are those people that are currently protected by awards and not byenterprise agreements. The most vulnerable workers in our sectors are people that are cur-rently protected by awards in general and not by enterprise agreements.

Senator GEORGE CAMPBELL—That is employees who rely on the safety net provi-sions.

Mr Woolgar—Yes. The recent safety net increase applied to the vast number of people inour industries.

Senator MURRAY—I would have thought that the most usual example of common out-comes is probably in the public sector, not in the private sector—standard conditions for po-lice service, nurses, teachers or so on.

Mr Woolgar—For enterprise agreements that may be the case. From our sector we wouldhave common claim for enterprise agreements but not necessarily a common outcome.

Senator MURRAY—Thank you.



Senator CARR—I take it you have all read the bill. I make that presumption. If I gothrough subsection 127.1, I notice the bill says, in powers of the commission, to omit ‘may’and substitute ‘must’. I notice 127.3, the commission must hear and determine an application.I go to 3A and I notice again the word ‘must’ appears. I go through this on numerous otheroccasions and I notice the word ‘must’ or some prescription on the level of discretion that thecommission is likely to enjoy. I was wondering how that would impact on your industry. I askyou all the same question. How does that reduction in the level of the commission’s powers ofdiscretion impact on your industries?

Mr Freeburn—In terms of 127?

Senator CARR—All of it. Consider the general principle of reducing the discretionarypowers of the commission. How does that affect your industry and your capacity to seek anywage or conditions justice for your members?

Mr Freeburn—What the bill is dealing with are the symptoms of disputation. That is, it isattempting to deal with industrial action. It has attempted to proscribe industrial action and setup conditions to deal with industrial action but without empowering the commission to actu-ally deal with the cause of the action. It is attempting to regulate symptoms but not empow-ering the commission to deal with the cause. That is the major problem with it. People areconcerned about industrial action that arises out of bargaining, but that is an inevitable conse-quence of a system of bargaining. What is attempting to be done is to require the commissionto make orders to stop industrial action without requiring any consideration of the merit of thedispute which has led to the industrial action. That is just manifestly unfair. It is just improper.All of the places where this bill does that and all of the places where in the current legislationit does that, it inhibits the capacity of the unions to deal with unconscionable acts by employ-ers.

Mr Swancott—There are two other points that I will try to make briefly. Firstly, where acommon outcome is sought on an industry basis, enterprise by enterprise, for example for thelevel playing field in the contracting enterprises like contract cleaning which is already ex-tremely low paid, what the bill opens up is the opportunity for one employer or a number ofemployers to stop the bargaining in relation to their enterprise, having allowed it in relation toothers. In other words, they can adjust the market in that sense by forcing the wage levels oftheir employees down to give them a competitive edge. That is the public interest argument.In economic rationalist terms, one might say, ‘So what?’ It is a matter for the Senate to deter-mine whether it adopts that position.

The second point we make is that the Workplace Relations Act at the moment in section 3Kcommits the Australian government to adopting international labour standards. SenatorMurray was questioning other people earlier today. Those labour standards include the right tostrike as do other United Nations instruments to which Australia is a party. They include theright to strike on an industry basis, as well as the right to strike on an enterprise basis. We arecommitted as part of the Australian Democrats and government agreement in 1996 to interna-tional labour standards. This attack on the right of unions to pursue a particular course of bar-gaining to exercise their international rights is moving away from section 3K and the com-mitments made in the Workplace Relations Act in 1996.

Mr Tighe—Senators, can I just precis what we in the industry see that it does within theact. It seeks to take us from a situation of allowing industries to make a determination forwhere they want to go within the current industrial relations framework, to a situation where itdictates what you can do. You heard the comments that were made by some of the employers



about their unhappiness with the removal of paid rates awards which allowed them to do cer-tain things. They are currently operating under a pattern bargaining arrangement which suitsthe way that they operate. This, in their view, appears to go to a dictate to say ‘No longer inthe future can you do that, in fact we will make it contrary to the act and we will dictate toyou as to how you can perform your industry negotiations into the future.’

Senator JACINTA COLLINS—Mr Tighe, just before others go on, can I ask youwhether, in relation to your earlier submission, you have tabled the employers’ statements ofconcern about this bill for this committee?

Mr Tighe—I certainly have not had the opportunity to do that Senator Collins. I havefaxed copies, two photocopy documents, which comprehend the quotes that I led you to, and Iam certainly happy to supply those to the court reporter today. Certainly we will be able tosupply the committee further instances of the views of employers in the industry if it sowishes.

Senator JACINTA COLLINS—I would appreciate it if you would because we have hadevidence from AIG, for instance, that there is universal employer support. Other evidence be-fore us is whittling away at that claim but if you have further then, yes, as a matter of impor-tance I would appreciate it if you could get that to the committee. AIG also said that they didhave a difference with the minister with respect to site agreements, so even they have ongoingproblems. Thank you.

Mr Woolgar—I think in relation to our industries it would result in further reductions inworkers’ benefits and workers’ conditions and wages. It would just force wages down in ourindustries, an industry which is under continual threat from imports from low cost countriesand also is vulnerable to various government legislation and the government’s position ontrade. I just see this as being a further attack on workers in our sector, a most vulnerable groupof workers. I can only urge senators to reject the bill in totality.

Mr Whipp—We would be concerned about any proposal to undermine the independenceof the Industrial Relations Commission and I think that change in wording can only be con-sidered to do that. Fortunately, the history of industrial action in our industry has been ex-tremely limited. Unlike many of the other unions represented here today, however, we haveachieved, and wish to continue to achieve, common outcomes in agreements which we havenegotiated with employer producers of our performer members.

This is because we have negotiated agreements which have, on the whole, only includedmodest wage rises for the performer members who are covered by those agreements—modestwage rises which are consistent with the funding which is given to the funding bodies which,on the whole, are the only reason why our industry exists. We would be concerned that, in theevent the proposed wording were changed and one producer were to fail to accede to the re-quests of the union—or the claims of the union—that would inevitably lead to the demise ofthe common outcome agreement because performers would effectively be unable to take in-dustrial action if the producer wished them not to, which would inevitably lead to a require-ment on the side of the union to negotiate the best possible agreement it could with each pro-ducer, whether that agreement were consistent with the funding available from the govern-ment or otherwise.

Senator GEORGE CAMPBELL—My question goes perhaps more to Mr Tighe, MrFreeburn or Mr Swancott. I presume that each of your organisations have members employedwith a substantial number of employers, and I presume that you develop your policies similar



to the way most unions do, through a conference type structure where you meet periodicallyto determine your policies, wages and a range of issues and you set about prosecuting them.

Setting aside the focus that this legislation is aimed at, which is a specific campaign that isprobably narrowly focused, in the second reading speech the minister said that this was aimedat a course of conduct or bargaining by an association of employees that extended beyond asingle business and was taken to be contrary to the objective of genuine enterprise bargainingunless the commission was satisfied that all the common elements, et cetera. Your unions aregenerally engaged in enterprise bargaining. Would there be any set of circumstances on aweekly basis where you would not have a range of campaigns going or claims going with in-dividual employers where there was some common nature in each of those claims?

Mr Freeburn—No, there would not be. We have thousands of agreements. We have nu-merous negotiations going on for enterprise agreements at any one time. This legislationwould catch all of those negotiations because invariably there are common claims in thosenegotiations.

Senator GEORGE CAMPBELL—So essentially, at any given point of time, employerscould use the provisions of this act to stop negotiations even if there was not the degree ofcommonality that is suggested perhaps in Campaign 2000?

Mr Freeburn—Yes.

Senator GEORGE CAMPBELL—The potential for litigation is substantial in terms ofthe application of these provisions?

Mr Freeburn—Indeed, and the common claim need not even be contested. The commonclaim might be something which the employer is entirely comfortable with, but that could beused as the device to remove the capacity of the union to pursue other claims which may becontested. Simply because there were common claims we would be caught.

Mr Swancott—And there is no discretion in that area. If the application is made for what-ever reason in relation to a campaign—for example, in our union, in the paint industry—byone employer, then it must be granted.

Senator GEORGE CAMPBELL—There is no assessment of merit?

Mr Swancott—No.

Mr Tighe—From the other point of view, that is exactly how we determine what issues wewill take forward, on the basis of setting policies. Those policies apply right across all sectorsthat my organisation operates in, and the CEPU is, for want of a better description, a salt andpepper organisation that is involved in nearly every industry in Australia. It would in fact im-pede us from taking forward issues such as better performance in relation to training. Most ofthe engineering industry in Australia has a current chronic skills shortage. It would stop usfrom ensuring that there are appropriate skill formation processes in all our sectors becausethe claim to improve training would be seen to be a pattern bargain claim.

Senator GEORGE CAMPBELL—One final question: the AMWU in their submission onFriday said that, given that enterprise bargaining had now been going for some six years, inthe vast majority of cases there were essentially two issues that were the subject of enterprisebargaining, and they were: how much and how long? Is a similar type of pattern developing inyour industries?

Mr Tighe—Most certainly. The outcome of the level playing field is obviously relatedvery closely to wages, but, like others at the bar table from this side of the bench, the position



is that we have flexibility arrangements to meet the other organisational needs. Pattern bar-gaining does not mean that you have an identical outcome across 1,500 employees, as I havequoted from my industry. What you have is a framework that might be consistent, and quitedifferent outcomes, yet some regulation that meets the need of industry.

Senator GEORGE CAMPBELL—So this is, in fact, a one size fits all approach beingimposed on everyone to try and deal with what is perceived to be a one size fits all campaign?

Mr Tighe—Yes.

Mr Swancott—In circumstances where, as I think the point has been made earlier today,existing provisions of the act are available to deal with the perceived threat.

CHAIR—Thank you for appearing today.

Proceedings suspended from 4.54 p.m. to 5.00 p.m.



[5.00 p.m.]BATT, Ms Karen Michelle, Branch Secretary, Community and Public Sector Union,State Public Services Federation Group, Victorian Branch, Victorian Trades Hall Coun-cilHUBBARD, Mr Leigh Damien, Secretary, Victorian Trades Hall CouncilSELLERS, Ms Hannah, Assistant Secretary, Australian Nursing Federation, VictorianBranch, Victorian Trades Hall CouncilSHORTEN, Mr Bill, State Secretary, Australian Workers Union, Victorian Branch

CHAIR—Welcome. The committee has before it submission No. 23 from the VTHC,submission No. 28 from the CPSU/SPSF and submission No. 31 from the AWU. Are thereany corrections or changes that you wish to make to your written submissions?

Mr Hubbard—Not at the moment.

CHAIR—The committee prefers all evidence to be given in public, but if at any time youwant to give any evidence, part of your evidence or answers to questions in camera, you maymake the request and the committee will consider the request. However, such evidence maysubsequently be made public by order of the Senate. I now invite you to make a brief openingstatement and then we will go to questions.

Mr Hubbard—I will try and keep it brief in view of the time. Thank you for the opportu-nity to address the committee this afternoon. The reason the Victorian Trades Hall Councilwanted to make an oral submission in support of the written submission is partly because ofthe importance of the federal system to Victoria at the current time. In New South Wales Iunderstand only about 27 per cent of all workers are covered by federal awards. In Victoria itis hard to determine, but it is likely that over 50 per cent are covered by the federal systemdirectly. So to us this piece of legislation is of major importance.

We do make comments about the shortness of time, and I reiterate those in respect of thecommittee’s proceedings. Many of the organisations that we have tried to contact—not justunions but also other organisations who deal with low-paid workers, including churches andcommunity organisations—were not aware of the legislation and certainly not aware of thetime lines. That has made it very difficult for them to take the opportunity to put some views,as should be their right.

Suffice to say, we oppose this legislation in its entirety. We believe it strikes at the veryheart of how all unions, not just a few unions in the metal industry or in the construction in-dustry, have conducted bargaining for a very long time. The second point we would like tomake is that we do not understand the urgency. The urgency is only understood if you recog-nise that this legislation is clearly focused at one campaign, and that is Campaign 2000, by themetal manufacturing unions in Victoria.

We say that there has been a massive misinformation campaign about Campaign 2000. It isnot a ‘one size fits all’ campaign. It is not about undermining the continued negotiation oflocal issues at a local level. What it is about is redressing the balance between enterprise bar-gaining and the needs and issues that arise at an industry level. It is about trying to redressissues such as the growing wage dispersion between those on the award base and those on theagreement base or even between agreements within the industry. It is about trying to improveskills and industry policy developments across an industry. It is about trying to meet newneeds such as the growing casualisation of the workforce and trying to find new entitlements,such as portable entitlement schemes, which might meet the needs of that industry. They are



just to name a few. From an employer point of view, it is to ensure that some employers obvi-ously do not continue to undercut others simply because those employers are able to evadestriking an enterprise bargaining agreement.

The third point that we would make is that, aside from Campaign 2000, this legislation isnot specifically addressed in its wording or language to Campaign 2000. It applies to all un-ions and all workers whether they are in the public or the private sector. In Victoria we areunder no illusion that, if it is passed into law, it will have a major effect on everyone—fromnursery hands and nurses through to private school teaches. We have got no doubt about that.

The fourth issue is the drafting of the legislation. I must say a relative of Dr Seuss musthave been involved in the drafting because it is very difficult to understand and it is unbal-anced in our view. It claims not to stop common claims but to stop a causal conduct of bar-gaining that is taken to be contrary to the objectives of the act—that is, single enterpriseagreements—unless all of the common entitlements being sought are of such a nature thatthey are not capable of being pursued at a single business level. To me, it is very hard to com-prehend what that means. That is made even worse by the focus in the bill on the employers’point of view. It appears that pattern bargaining is okay if the employer consents to it but notokay if an employer takes an objection. Secondly, it says that the commission cannot take intoaccount the merits of the claim but only the way that the claims are pursued—and I refer thereto section 12 of the explanatory memorandum. In other words, it is not about whether this isan appropriate claim for pattern bargaining, whether it is a reasonable claim; it is simply aboutwhether this is a process that this bill or this act makes unlawful.

We do not propose that these deficiencies can be remedied by amendment. We say quitebluntly that we support pattern bargaining, industry bargaining or multi-employer bargaining,whichever way you like to call it, at the level determined by the parties, not at levels pre-scribed by an ideologically driven government. We believe in freedom of choice for the par-ties to actually make up their mind at what level they bargain.

The next issue which we raise in our submission is the international issues. I think thesecome in two parts: firstly, the obvious one which I am sure many other organisations haveaddressed; that is, this legislation takes the Workplace Relations Act further into breach in ourview of, if not the law, at least the spirit of the international conventions governing collectivebargaining and the right to organise. Others would have mentioned the March 1999 interna-tional labour organisation committee of experts view that prohibitions on pattern bargainingwere indeed in breach of our international obligations.

Another issue which we wanted to raise was this notion which I see in the minister’s state-ments, and in the department’s statements, that somehow you can only be productive and effi-cient if you engage in enterprise bargaining and if it is an exclusive focus on enterprise bar-gaining. We put some material in our submission to counter that. It is not just simply that de-veloped countries do not prohibit industry or multisector bargaining; some of the most effi-cient and productive, those which are really going places economically, allow and encouragebargaining at a multi-employer or an industry level. They are going further than that—I willprovide an article to the committee about the Europeanisation of collective bargaining inEurope—in that they are even now looking at linking industries across Europe in the bar-gaining process—not just multinational employers but bargaining across industries.

Finally, I simply say that we oppose other changes in respect of section 127 of the act:stopping anti-suit proceedings in the federal court to stop matters going off to a supremecourt. In both cases we believe that the discretion of the commission is under attack. The fed-eral court also has expertise that ought not, we believe, be interfered with, particularly when



many of the proceedings will already be before them in that court. For those reasons we alsooppose the other aspects of the bill as well as those aspects which encompass pattern bar-gaining.

Mr Shorten—I just wish to add three points to the Trades Hall and the AWU submission.One is that we believe that the extent of this legislation will have unintended consequences inindustries not previously contemplated by the drafters. If this legislation goes through, it willmake unworkable wage relationships in industries the AWU deals with. How do we create binrates for fruit picking, which are created through negotiations collectively with the farmergroups—not at the individual farm but at an industry level?

There is no such thing as an enterprise agreement with a farm, nor do the farmers particu-larly want us there on every farm gate. For nurseries and the flower growers there are no en-terprise agreements existing in Victoria in the horticultural industry from vegetable gardens,market gardens and nurseries. Any negotiations are done at a higher or a broader level thanthat. In traffic control and road making in rural Australia, which is the civil construction areaof the AWU, despite the attempts of some to deny that, all of those wages are set throughstandards more than just individual enterprise bargaining. The horse training industry wouldcome to a standstill in negotiating wages. There is not a single enterprise agreement in anystable in Australia and I am not sure that the Freedmans and the other racing stables, particu-larly, will appreciate the Senate passing legislation requiring them to get to that level of detailwith their stablehands.

There is not a single enterprise agreement in a shearing shed in Australia and all wage ne-gotiations are done at a broader level through the pursuit of pattern bargaining. Indeed, wehave just concluded negotiations for the Victorian jockeys and we do not negotiate individu-ally each ride fee with each trainer and owner on each race meeting. There are some 40,000raced each year in Victoria. That is my first point: the range of industries that would be caughtup in this net borders on the ridiculous.

The second issue which the AWU wishes to draw to the committee’s attention is the attackon the Federal Court, specifically a clause which we believe is pernicious and an attack on therole of the Federal Court. Section 170MTA in paragraph 2 reads:Currently it is consistent with the Workplace Relations Act that unions can take protected action con-sistent with ILO conventions. Sometimes there is agreement between the parties whether the action isprotected or not.

In these circumstances unions, including my own, have sought a declaration from the FederalCourt.. Specifically, the declaration that we have sought is that our claim for protected actionis well founded. Further, because it is protection, the current section 170MT gives the unionimmunity from suit. However, we are very concerned in light of the way the law operates cur-rently by section 170MTA(2), which is outlined in the explanatory memorandum.

It is a provision to remove the Federal Court’s power to make an anti-suit injunction. Inother words, it is an attempt to restrain Federal Court power. An anti-suit injunction is aboutprotecting the court’s jurisdiction. As the members of this committee would appreciate, sim-ply put, if the court, in this case the Federal Court, under the Workplace Relations Act, ishearing a matter it has a capacity to issue an anti-suit injunction to restrain one of the litigantsforum shopping in another jurisdiction. It is a standard power of courts in Australia for 100years and it is specially utilised in commercial litigation, as members of this committee wouldbe aware.



However, it does also extend when the court deals with industrial relations matters. Putsimply, the process would be that we say that we have protected action and the court makes adeclaration to that effect. The problem we have is that sometimes employers will go to thestate Supreme Court and try to sue us there. If they have the capacity to carry out their legalaction in the Supreme Court after the Federal Court has already given a declaration that this isprotected action, this effectively destroys our immunity and destroys the capacity of the Fed-eral Court to hear the matter.

This perhaps is one of the most—I use rhetorical language perhaps, but it is pernicious, it isugly and it will create a lawyers’ picnic. If it passes through unchanged, it will allow the sameissues between the same parties dealing with the same facts and the same questions of law tobe dealt with at two different courts simultaneously. We think that this is an absurd proposi-tion. We also think that it is incorrect and poor public policy to allow taxpayers’ resources andthe resources of all the parties to be exercised in two different courts at the same occasion. Forthose reasons, we believe that section 170MTA(2) is poor law and we draw the committee’sattention to the long-held High Court view, which is the same as that which I have indicated. Igive the authority for the committee to investigate CSR and Cigna Insurance Australia Ltd1997, volume 189 of the Commonwealth Law Reports, 345 at pages 392 and 397. The HighCourt said:The counterpart to a court’s power to prevent its processes being abused is its power to protect the in-tegrity of its processes once set in motion.

The legislation in front of the Senate will mean that the court cannot protect the integrity ofits own processes once set in motion. Probably the third point, but I am happy just to take it inquestions, is the issue of Campaign 2000. We have respectfully looked at the list of who hasappeared. I am the secretary of one of the three unions involved in Campaign 2000—I am aVictorian trade union official in the metal industry, one of the so-called economic wreckers bythe Australian Industry Group. I think it is poor public policy to form a law around one issueat one time. However, having said that, I would be more than pleased, if the senators feel in-clined in question time, to briefly indicate and demystify some of the fictions. In conclusion, Ibelieve this bill should be renamed the Australian Industry Group Bill 2000, for the reasonsoutlined above.

CHAIR—Are there any other brief opening comments? I would just draw people’s atten-tion to the time because we are on a limited schedule of half an hour for this group, includingquestions.

Ms Batt—I understand that, Senator. From our perspective, we believe that the intent ofthe legislation, as indicated by my colleague from the Australian Workers Union, has beenfalsely premised on the question of one campaign, which is Campaign 2000, for the MetalTrades Federation of Unions. Also, on 30 June this year, in the Victorian Public Service,10,000 AWAs come out of their operation, as does the operation of a section 170MX award,which has recently been made by the federal commission. That will see the Victorian branchof the CPSU serve a common claim on the Victorian government to negotiate one frameworkagreement to cover what is ostensibly still at the moment 23 separate employers operatingwithin the core government of the Victorian Public Service.

We believe very strongly that the operations of this bill will actually prevent us, in theevent that one of those employers decides to operate outside the guidelines of the state gov-ernment. We are in a process where central negotiations are determined by a subcommittee ofcabinet, wages outcomes are determined by cabinet, and the negotiations are centrally prom-ulgated by Treasury and Finance, or the newly created Department of Industrial Relations. It



would ensure that we as a union would be unable, despite the vote of all our members acrossthe state Public Service, to pursue with some protection the processes associated with collec-tive bargaining across our industry. It would also prevent negotiations occurring within the1,600 schools that exist in Victoria and that are currently employers in their own right. Schoolcouncils still are employers in their own right and still employ staff— principals, teachers andadministrative staff. The processes associated with this bill will see that a centrally deter-mined outcome in terms of a wage allocation or a budgetary allocation from the state budgetto those school councils could not be the subject of a collective negotiation in any of thoseprocesses, despite restrictions on how that money is to be used from a central government, butbecause they are defined as an ‘individual employer’ we would not be able to, with immunity,negotiate those issues.

I just want to make one point, and I adopt the outline of the submission from the TradesHall and also the ACTU. Pattern bargaining occurs in our sector. State governments, as aright, negotiate issues within a framework. They control processes associated with policywithin the confines of budgetary constraints and within the confines of COAG in the contextof Commonwealth-state funding agreements. All of these things, whether you talk about thehousing agreement or the Medicare agreement, eventually relate to terms and conditions ofpublic servants in Victoria. Those things are controlled centrally. We should not be fetteredbut should have the right to negotiate centrally with our employer as well.

Finally, in relation to section 127—it was highlighted by our federal secretary earlier thisafternoon—we had an incident involving the processes associated with section 127 in Victoriawhere a prison officer recently had his throat cut, and quite seriously, by an offender withinPort Phillip prison. That prison officer’s assault resulted in a health and safety dispute withinthe prison and the officers refused to go back in until such time as that prison was made safe.Rather than the employer negotiating on the question of staff ratios and the health and safetyof officers, they made an application to the federal commission for a 127 order against theunion. If this legislation had gone through in its current form, we would be in a situationwhere we were forced either to recommend—because of the wording of this amendment—that our members go back into a work site that was unsafe, because the employer refused to ac-cept it as a health and safety dispute, or be in breach of court instructions, to be in contempt ofcourt.

I do not believe any senator would like to be in the position of a state union official beingcaught in that position. In addition, in the event that that provision goes through, it will nullifythe operation of the Victorian health and safety act for people taking action. It would not bedefined as protection action by the very broad definition contained in the bill as it stands now.It would actually nullify our rights under the health and safety act in Victoria because, as youknow, under the Constitution this law would override it in the context of the powers of theCommonwealth. That is our submission.

CHAIR—We have only another 10 minutes for the whole session, I am sorry.

Senator MURRAY—I will give up my time for the nurses.

Ms Sellers—Yes, that is a very good idea. The Australian Nursing Federation in Victoriarepresents over 31,000 members employed in both public and private acute facilities, in agedcare facilities, in community health centres, in local government, in doctors’ surgeries, inprisons, on industrial sites and in pathology and radiology clinics. We do oppose this legisla-tion in its entirety for reasons that have already been outlined, and we support the notion andthe continuation of pattern bargaining.



The very results of the 1986 action in Victoria that culminated in a 50-day strike arose outof a decision by the commission that actually handed down an award that produced significantdifferences for nurses working not only within hospitals or within health settings but alsobetween hospitals and health settings. For that reason, we support the continuation of patternbargaining. Indeed, our claim that has just been served on the state government for this roundof negotiations contains terms and conditions of employment that have been formulated byour delegates who have attended the last two annual delegates conferences. Some 250 nursesattended those conferences each year.

The nurses themselves have certainly indicated that they want to continue with the oppor-tunity to be able to negotiate collectively. They do not believe they have the power to negoti-ate at an enterprise level, as has been suggested and proposed under this legislation. As anexample, nurses working in doctors’ surgeries are unable to negotiate at the enterprise. Theonly way that those nurses will ever receive an increase is through pattern bargaining. Thesame applies for the 3,500 members we have employed in aged care facilities, where we re-cently managed to gain a 15 per cent increase for them through a 170MX application to thecommission. Yet had we not had a paid rates award and had we not been able to have discus-sions with the employers that did not result in a negotiated outcome, those nurses too wouldhave been denied a pay increase that the commission has recently granted them.

If we were not able to pattern bargain, we would not have the opportunity to introduce pro-visions such as maternity leave, which for the first time was introduced into the 1997 enter-prise agreement both in the public and in the private sector. To suggest that nurses want theopportunity to negotiate directly with their employers at the enterprise level is a nonsense forthe simple reason that our office receives over 500 calls a day from nurses with particularproblems in their particular workplaces. If nurses felt comfortable about negotiating an out-come with their employer, there would be no reason for those calls to be coming in and noreason for our officers to be acting and advocating on their behalf. So for the reasons thathave already been outlined by other representatives, the Australian Nursing Federation cer-tainly rejects the proposals in this legislation for the reasons already given and believes theSenate ought to reject it.

CHAIR—Thank you. Do you have a question, Senator Murray?

Senator MURRAY—I have given up my time.

Senator CARR—On page 8 of your submission, Mr Hubbard, you set out what you per-ceive to be the declining international position of Australia with regard to meeting Interna-tional Labour Organisation obligations. Can you enlarge on that matter? Do you see that thereis a link between productivity and enterprise bargaining or industry bargaining?

Mr Hubbard—That material comes from the ‘World Competitiveness Yearbook’, which Iunderstand is freely available and is done by the International Management Development In-stitute. They do 47 countries each year on a whole range of criteria—they assess them interms of competitiveness. My understanding is that Australia ranks 13th and we have slippedone place over the last year or so, yet a number of other countries that have gone up signifi-cantly in that competitiveness survey are countries, particularly the Scandinavians and thenorthern Europeans, who undertake multi-employer and industry bargaining.

I have also just got an article from the European Industrial Relations Organisation, which Iwill hand up to be distributed to senators, which basically says they are going further. Ratherthan just sector and multi-employer organising or bargaining, they are now heading European-wide, so that outcomes on wages and conditions will have more consistency across the whole



of Europe. All I am saying is that this nonsense that somehow an exclusive focus on enter-prise bargaining is the only way you achieve efficiency and productivity is a nonsense.

The other thing I want to hand up today is an article by a number of researchers which wasin the Journal of Australian Political Economy and which does an analysis of workers wagesin the metalworking industries in Australia over the last five or six years. It basically con-cludes that the dispersion in wages is widening very rapidly as a result of enterprise bargain-ing. We are certainly feeling that out there. The weaker workplaces are slipping further andfurther behind; the stronger ones are going further and further ahead. Across the industry, theold award system used to provide at least a good floor which had a close nexus withoveraward wages. That no longer is there and that is certainly another thing that is of greatconcern to us. I will hand that article up. It is by Professor Ron Callus, John Buchanan andChris Briggs.

Senator CARR—I will ask all of you this, and whoever wishes to respond may do so—itis on the question of seeking particular parties’ views in an industrial dispute. In this case wehave before us a proposition that says that the commission should take into specific accountthe views of the employers. How common is it, in your experience, to take a particular party’sview into account when any industrial tribunal is considering any matter?

Mr Hubbard—I certainly cannot think of another example of it, and certainly not in leg-islation of this kind.

Senator CARR—Has it occurred at any state level, Mr Shorten, that you are aware of? Orhas it occurred in the nurses’ area?

Ms Sellers—No.

Mr Shorten—No. Clearly, Peter Reith has put it in as a hook whereby if there is anamendment on that issue everyone can say that the bill is cleaned up. It is clearly absurd and itis a paper tiger. I just view it as a legislative gambit to be knocked off and then people cansay, ‘See, we’ve reformed the Liberal legislation, we have got a trophy clause out of it.’ It isclearly ridiculous.

Senator CARR—However, the bill also has no reference to employers’ pattern bargaining.Is there not a broader pattern there rather than just being a hook, Mr Shorten?

Mr Shorten—Certainly we believe that if the government could get away with it theywould put it in to totally disempower workers and the registered organisations that representthem, but I would just find it incredible that that section would.

Mr Hubbard—We understand that employers pattern bargain. We have no problem withthat. We understand they do it in state governments. Even the Office of the Employment Ad-vocate is now pattern bargaining in the sense that they are sending out a template AWA to allemployers who ask. We have no problem with that. What we want is the same right for unionsto be able to choose the level of bargaining that they engage in. That, to us, seems fair. We donot propose that somehow this legislation be amended to make it more even-handed. We sayit ought to simply be rejected because the level of bargaining ought to be determined by theindustrial parties.

Mr Shorten—The Australian Industry Group at the Hyatt Hotel on 27 and 28 Marchformed common policies to deal with Campaign 2000. The documents are freely available.The AI Group outlined some industry-wide responses for their members to deal with our in-dustry-wide initiatives. Clearly, their tactics are industry-wide and they have a strategy to pur-



sue a whole range of legal, industrial and media tactics. They clearly intend to pattern bargainacross the industry to deal with our campaign.

Senator GEORGE CAMPBELL—You will be pleased to note, Mr Shorten, that on Fri-day they did not deny that they pattern bargain.

Senator JACINTA COLLINS—No, they said that they do not mind getting a free kickwhen it is offered to them.

Mr Hubbard—We could give you many examples of that. For example, in Victoria, thereare five major employers in the lift industry. They came to the AIG, the very ones who areseeking this bill, and said, ‘Look, we don’t want to compete on wages and conditions, wewant to compete on other things. We want you, on our behalf, to negotiate a common agree-ment, across the lift industry and escalator industry in Victoria, with the unions.’ And that iswhat the AIG did. If one of those employers had said, ‘We don’t want that,’ under this legis-lation that would have been turned on its head. But that is what those five employers want.

We know that in the car industry, in the automotive components industry. You look at Toy-ota, which was threatened with closure last week. Most of the car industry, including thecomponents manufacturers, would rather there be common dates of expiry and an automotivecomponents industry agreement so that you did not have this risk to the industry. Today I wasrung by an employer saying he was dirty on the union because there had been a different out-come. He was expected to pay more under an outcome than another employer going into aworkplace to contract. I think there are lots of employers out there who want to see a con-tinuation of some sensible industry based approach. This legislation would proscribe that.

Senator JACINTA COLLINS—Very quickly, Mr Shorten, please provide us with yourviews on how Campaign 2000 has been characterised and what the reality is.

Mr Shorten—In Victoria at the moment the leaderships of a number of unions have afairly aggressive outlook in terms of bargaining. They enjoy a fairly high level of membershipsupport within their constituent branches. It is a fairly new phenomena. We believe the Aus-tralian Industry Group have been accustomed to dealing with certain union leaderships andthat as there has been generational change they have found the new people bewildering todeal with—as, indeed, some unions have.

We believe that appropriately in the metal industry there has always been some form of in-dustry bargaining. The Australian Workers Union are the second largest union in Campaign2000. We have some agreements which go past the dreaded 30 June expiry date because atthose sites our members have made clear that that is what they want to do. Most of ouragreements expire on 30 June, but most of our employers are not particularly concerned; theyaccept that we will come up with a new agreement.

In particular, we believe that the reason this law is silly and that it is silly that it is aimed atCampaign 2000 is that at the moment in Australia employers can have any method of remu-neration from the piece rate system used in shearing sheds through to salaries through tohourly rates of pay and which, through the process of negotiation, can be collective or AWAs.What we find ridiculous is that Peter Reith wants to pass a law outlawing one method of ne-gotiating remuneration and leave others intact. Clearly, in Campaign 2000, most of the em-ployers will negotiate an outcome by August. It will have some central features to do with acommon minimum wage increase. It may well deal with issues of training. But much of thenegotiation will be local, and no agreement, certainly for our union, can be signed off on untileach individual site has voted on it.



We understand the AI Group is in competition with VECCI and other employer federationsto be seen as the paramount group. What concerns us is that the legislative process has beencaught up in what can be characterised as an employer demarcation fight to prove who is thekey employer group in Victoria. Whilst we do not mind them trying to establish their ascen-dancy, we think that there is a lot of paranoia about Campaign 2000. If the textile industry orthe fruit picking industry had common expiry dates, we do not think people would be pan-icking, but the employer group involved has seized upon this campaign as a way of reinvigor-ating its membership.

We think that, taking away the smoke and the sound and the fury, this will be business asusual because most employers currently ring up their colleagues, find out what they are pay-ing and then they confront us. In the aluminium window making industry, which is a metalindustry, or in the dye casting industry, they always tell me what every other employer haspaid in that industry. We think that when you strip away the emotion and some of the posi-tioning by the various players, this is just a debate about whether one form of remunerationand its process is better or worse than any other. We, as a union, do not subscribe to the ‘onetrue view’ theory of life. We invite the Senate committee to accept that it is horses for coursesand that this legislation is trying to prescribe what people want to chose to do themselves.

CHAIR—Thank you for appearing today.



[5.36 p.m.]BELL, Mr Kevin Harcourt, Executive Committee Member, International Centre forTrade Union RightsCHIN, Mr David Wai Mun, Secretary-Treasurer, International Centre for Trade UnionRightsLAWRENCE, Mr Anthony John, Assistant Secretary, International Centre for TradeUnion Rights

CHAIR—I welcome representatives of the International Centre for Trade Union Rights.The committee has before it submission No. 21. Are there any corrections or changes youwould like to make to the written submission?

Mr Chin—There is one. On page 37 of the submission’s footnote 49, the committee willnote there is an omission of some figures marked by double Xs. I would like to make the fol-lowing change: the note should now read:Since March 1996 the membership of the Commission has declined from 56 to 42.

That is the only correction.CHAIR—The committee prefers all evidence to be given in public, but if at any time you

wish to give any evidence, part of evidence or answers to any questions in camera you maymake the request. The committee will consider the request, but such evidence may subse-quently be made public by order of the Senate. I now invite you to make a brief openingstatement and then the committee will ask questions. I ask you to be brief, given the time con-straints we are working under.

Mr Chin—The International Centre for Trade Union Rights, also known as ICTUR, wel-comes this opportunity to contribute to the Senate committee’s inquiry into the present bill. Iwish to make some brief remarks before handing over to my colleagues to address specificprovisions of the bill. The nature and functions of our organisation are set out in our writtensubmissions, and I do not propose to go over those matters unless the committee can be as-sisted by that. ICTUR has put together, for the specific purpose of this submission, an inter-national panel of professional lawyers with expertise in Australian and international labourlaw. Unfortunately, two eminent members of that panel, Professor Keith Ewing and Mr JohnHendy QC, who are London-based, are unable to be with us today. Also Mr Mordy Brombergand Mr Anthony Forsyth, our president and assistant secretary respectively, are also unable toattend. Those persons each have made significant contributions to the submissions. I extend tothe committee their apologies for being unable to be here today.

It is our intention to address members of the committee by way of supplementary oralsubmissions on the definition of pattern bargaining as contained in the bill. Mr Kevin BellQC, a senior counsel of the Melbourne bar, will address you primarily on this supplementarysubmission very shortly. Before I hand over to Mr Bell, however, I want to make this point:ICTUR has closely monitored the impact of the Workplace Relations Act 1996, and subse-quent bills introduced by the government to amend that act, since its enactment in 1996. In-deed, ICTUR has made substantial written and oral submissions to the various Senate inquir-ies into the Workplace Relations and Other Legislation Amendment Bill in 1996, and again inrelation to the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill1999.

On each occasion, the thrust of our submissions that the proposed legislation in questionwas in breach of fundamental human rights, was subsequently vindicated by definitive find-



ings of the ILO Committee of Experts. Indeed, on the question of pattern bargaining specifi-cally, the ILO has on no less than three separate occasions in the past three years—possiblyfour if you include the observations of the committee on freedom of association about thewaterfront dispute—with the most recent finding in March this year, found unequivocally thatthe right of unions, employers and employees to bargain at whatever level they see fit,whether on a single or multi-employer basis or on an industry-wide basis, is a fundamentalhuman right. It is a human right, of which Australia currently is in breach, and that has beenrepeatedly confirmed by the ILO Committee of Experts.

We note, in particular, in the preface to the Labor and Democrats’ minority reports in re-spect of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999that it was agreed by the senators that Australia’s international obligations require close con-sideration in the context of the operation of the current act. We know that the present bill sub-stantially reproduces significant parts of the 1999 bill, and I urge the committee as a whole togive close consideration to Australia’s international obligations in respect of this bill. I com-mend our written submissions to the committee for its close consideration.

Our written submissions reveal that, if there was ever any doubt about the finality of theILO findings that Australia was in breach of its international obligations at the time of the lastSenate inquiry into the 1999 bill—we say there was not—there can be absolutely no doubtnow that Australia stands condemned. The March 2000 ILO Committee of Experts reportconfirms, for the third, or perhaps the fourth, time in as many years, that the current restric-tions on pattern bargaining in the Workplace Relations Act, or multi-employer agreementmaking, are contrary to basic international labour standards which are basic human rights. Itfollows that this current bill would seriously compound Australia’s existing breach of interna-tional human rights by effectively prohibiting industrial action in support of multi-employercollective bargaining. Our main written submissions deal comprehensively with this question.

The passage of this bill would sit at odds with object 3K of the Workplace Relations Actwhich, of course, states a purpose of giving effect to Australia’s international obligations inrelation to labour standards. It also would flatly contradict the statement of the Minister forEmployment, Workplace Relations and Small Business at the ILO conference in June 1999.He declared that the Australian government respects the fundamental principles in the decla-ration on fundamental principles and rights at work, which was affirmed last year and whichexpressed commitment by ILO member states to freedom of association and recognition ofthe right to collective bargaining at all levels.

In conclusion, the committee should be under no illusions. Australia, as we speak today,stands with its back turned squarely against its international obligations to encourage collec-tive bargaining at all levels. This bill, if enacted into law, will cause Australia to walk furtheraway from those international obligations and toward more international condemnation andembarrassment. With those words, I now hand over to Mr Bell to address you.

Mr Bell—I fully endorse the central thrust of ICTUR’s submission which deals with inter-national aspects, but I want to deal with various technical aspects about the operation of thebill. The main evidence I want to give to the committee is that this bill has very serious tech-nical deficiencies which, if not corrected, will result in the enactment of legislation having analarmingly wide scope.

CHAIR—Have you put this in the written submission?

Mr Bell—No. This is a development of what is in the written submission. Is that imper-missible?



CHAIR—I am just very mindful of the time.

Mr Bell—I will be brief.

CHAIR—Okay.

Mr Bell—Firstly, can I deal with the issue of ambiguity. There are several respects inwhich this bill contains terms of almost impossible ambiguity. I mentioned the terms ‘courseof conduct’, ‘what is bargaining’, ‘what is conduct involving seeking common wages and en-titlements’ and ‘what is a campaign’, but more importantly the concept of whether entitle-ments are of such a nature that they cannot be pursued in a single business alone. I heard aspeaker give evidence today that he did not understand what that concept meant, and speakingentirely as a lawyer, I think the judges will be very troubled by that concept. It does not drawat all on any accepted standard of industrial law, it has no history in Australian industrial rela-tions, it is not possible to have regard to any precedent in order to understand what it meansand the courts will therefore search wide in order to understand the legislative intent. I thinkthe words will be construed exactly literally, and the result will be a provision that does notseem to me to achieve what is intended.

Virtually any industrial provision is capable of being pursued at the enterprise level. I can-not see in law a basis upon which to distinguish wages from superannuation or leave to sepa-rate out allowances from redundancy pay. The only provision that I could see as possiblyqualifying as being impossible of performance at other than the enterprise level is a portabilityprovision—in other words, a provision that guarantees that within a whole industry particularprovisions and entitlements will be observed by all once an employee moves from one placeto the other. All other terms of employment are just as capable of implementation at the enter-prise level as they are at the industry level. Therefore, this provision does not qualify to seg-regate so-called unreasonable common claims from the reasonable. The provision catcheswithin the concept of a common claim virtually all kinds of claims that are traditionally andon an orthodox basis advanced by unions in common industrial practice. If the provision isintended to constitute a basis upon which pattern bargaining regarded by the legislature asbeing permissible is to be allowed from that which is not, then it fundamentally fails becauseit includes all within its ambit.

I endorse, in terms of my own industrial practice, the evidence that was given today byunion officials about the common basis upon which they advance claims such as wages, su-perannuation, leave, maternity leave and so on. These are all claims which are traditionallyadvanced on a common basis. Call them pattern if you like, but all of these kinds of claimswill be wrapped up in the denial of protected status for industrial action in pursuit of thoseclaims which this act will bring about.

I turn now to a third area of deficiency. The act is intended to abolish immune industrialaction in respect of pattern bargaining. The provisions actually result in the capacity for thecommission, indeed the mandatory requirement for the commission, to terminate the immu-nity whether or not industrial action is engaged in in pursuit of such claims. The mandatoryrequirement in section 170MWB for the commission to terminate a bargaining period can beinvoked by an employer applicant whatever the nature of the conduct engaged in by a unionin pursuit of a claim the subject of a pattern bargaining situation. This is another respect inwhich the bill seems to me to be aimed at a wider range of conduct that has been publicly an-nounced and described in the second reading speech and to rather be aimed at wider policyobjectives.



I turn to the fourth area, the reliance upon the views of the employer. The views of the em-ployer, but one party in an industrial situation, certainly form a proper basis upon which thecommission can make a decision, but of course only one such basis. There is in my experi-ence no precedent in Australian industrial history for the commission to be guided by theviews of one party to an industrial situation or dispute. This marks, I think, a sad day when, inlegislation supposedly governing fairly and equitably a resolution of disputes between parties,in a conflict of interest the interests of one party in that conflict are to be regarded as pre-dominant. However, speaking more technically, the requirement that the views of the em-ployer be paid specific regard by the commission will, I think, result in a confused outcome.Are the views predominant? What is the status of other views? What is the status of the viewsof the unions or their employee members? What is the status of the view that may be ex-pressed by an intervener, for example, the minister? The commission will be left to resolvethese conundrums as with others under this legislation. Can I turn now to the anti-suit injunc-tion issues, another technical question regarding the operation of the bill that is dealt with inour primary submissions?

CHAIR—You could table all this just in the interests of time if you are reading a submis-sion.

Senator CARR—I take it it is handwritten, is it?

Mr Bell—I am developing this as I go along, Senator.

Senator CARR—I would like to hear it. If not, I will ask you a question and you can de-liver what you have to tell us.

CHAIR—You are free to ask any questions you like, Senator, but we do have a time limitand the more you speak the less time the witnesses have.

Senator CARR—I would ask Mr Bell to continue.

Mr Bell—I think I have been brief. I have been speaking for about eight minutes on mycount, Senator.

CHAIR—That is about all we have got in total.

Mr Bell—I want to make a quick important point. The anti-suit injunction power is centralto the operation of the Federal Court as a judicial institution. Every superior court in thiscountry possesses that power. The High Court has stated that it is integral to the maintenanceof the court’s integrity. Without it, the court cannot guarantee in industrial cases its own integ-rity. Don’t abolish it. If you do, you will create constitutional doubts about the operation ofthe provision because the capacity of the court to protect its own integrity is so central to itsoperation as a judicial institution that it is doubtful whether or not you can constitutionallyattack it. That is my evidence on that subject.

CHAIR—Thank you. Who are the members of the International Centre for Trade UnionRights? How many people for example?

Mr Chin—We have a broad membership base comprising lawyers, academics and tradeunionists and other persons interested in the promotion and defence of trade union and work-ers’ rights. We have approximately 130 individual members with organisational membersnumbering upwards of 30 or 40 comprising mainly trade unions but other organisations aswell.

CHAIR—How is the centre funded?

Mr Chin—I beg your pardon?



CHAIR—How is your centre funded?

Mr Chin—We are a non-profit organisation funded by membership fees and proceeds fromthe sale of a quarterly magazine known as International Union Rights.

CHAIR—When was your centre established?

Mr Chin—It was established in 1987 and it has its national office and secretariat in Lon-don. The Australian national committee was founded in 1993.

CHAIR—In 1993?

Mr Chin—That is right.

CHAIR—Why didn’t you call publicly for the repeal of the 1993 Labor legislation whichdenied the right to protected action in support of multi-employer agreements?

Mr Chin—I am not aware personally of the organisation’s representations in relation tothat legislation. However, in relation to one aspect in which that legislation was in breach ofinternational labour standards and that is the imposition of a minimum number of membersfor registration of industrial organisations, I am aware that the minister at the time gave acommitment that the government would legislate to rectify that legislation’s breach of anyILO standards if that was found by the ILO committee of experts. Such a breach was foundand that commitment was honoured. It is an example I raise in relation to the previous legis-lation whereby an amendment was made pursuant to findings of the ILO committee of ex-perts.

Mr Bell—I believe we are on the record as opposing that aspect of the former legislationwhich laid sufficient emphasis upon collective bargaining. But there is a real question of de-gree here about the extent to which the current legislation and that to be amended preventscollective bargaining and its functioning operation and that which obtained under the previouslaw, which was quite different.

CHAIR—My initial question was: did your centre publicly oppose or put in any submis-sion in 1993 when this very significant change to industrial legislation took part in this—

Senator CARR—It is on the record.

Senator GEORGE CAMPBELL—What records will you accept? The Federal Court rec-ords?

CHAIR—You are here appearing before the committee and protesting against this. I amtrying to figure out what type of measure of protest you made last time compared to this time.

Mr Bell—The measure of protest was different, I concede, but the fact is that we are on therecord as opposing the former government’s legislation in the—

CHAIR—In what form on the record are you?

Mr Bell—We speak at public fora such as conferences, at seminars that we organise our-selves, on radio interviews which I have personally given on behalf of the organisation, and Iam here today with my colleagues.

CHAIR—Do you have any records of that which you could submit to the committee onwhat you said at that time?

Mr Bell—Without making inquiries I don’t know. However, I can confirm to this commit-tee that our position is that the former government’s legislation did not sufficiently express thevalue of collective bargaining. But there is a tremendous difference between that which was in



the former legislation and that which is in the present, and that which will be in the presentonce amended.

CHAIR—Did you complain to the ILO in 1993 about that legislation?

Mr Bell—Not ourselves. We do not know if others did, but we did not ourselves complain.

Senator CARR—Was it rectified?

Mr Bell—No, I don’t believe it was. I know that the ILO did take action in the mid-90s,and there was a response on behalf of the former Labor government, but I do not recollectwhat it was. However, the complaint here about this legislation, which is plainly in breach ofinternational labour standards—

CHAIR—That is very curious because in 1993 it was too. I am wondering why you aremaking such a loud noise about it now and you didn’t back then.

Mr Bell—I believe I have answered that. There is a question of degree, and there is also aquestion of the development of our organisation. In 1993 we had only been recently estab-lished. We were a young organisation and we had not appeared before Senate committees, butwe have had some 10 years to grow. We are here today and we place on record that we standfor universal labour standards. Whatever government fails to live up to them, we will criticise.

CHAIR—That is what I assume you stood for in 1993?

Mr Bell—Yes, it is.

CHAIR—You then had the most significant change in industrial relations legislation up tothat point come in. Given the nature of your organisation and your title, the InternationalCentre for Trade Union Rights, if something was in breach of the ILO I would have thought itwas the way to launch in a big way your organisation by attacking such provisions. It does notseem to have happened at that time.

Mr Bell—I believe I have answered that.

CHAIR—Do you know that international bodies such as the International Monetary Fundand the Organisation of Economic Cooperation and Development have publicly supported the1996 Workplace Relations Act and its reform direction. Did your centre take into account theviews of those international bodies or just the ILO?

Mr Chin—With respect to those international bodies, it is the International Labour Organi-sation which has the expertise and the responsibility to formulate and devise international la-bour standards, it is not within the compass of those other international bodies that the youmentioned. We therefore focus on the ILO’s jurisprudence and pronouncements in this area.

Senator CARR—We were today given a number of answers to questions from the depart-ment in regard to the effect of this bill on the roles and the powers of the commission and onthe department’s view as to the consistency of this bill with Australia’s international obliga-tions. Would you take on notice these questions and provide us with your views as to the ade-quacies of the department’s response to each of those questions?

Mr Bell—Certainly.

Senator CARR—We will need them back fairly quickly. That is the problem.

Mr Bell—Yes, we can do that.

Senator CARR—You have given us preliminary views today, but I am asking for the spe-cifics of the government’s response.



Mr Bell—How soon do you want the answers?

Senator CARR—Tomorrow. Is that possible?

Mr Bell—Yes, all right.

Senator CARR—I am sorry, but there is a very sharp time limit here that is not of ourchoosing.

Mr Bell—We will give further evidence in writing to you tomorrow.

Senator CARR—Thank you very much.

Senator GEORGE CAMPBELL—Just an extension of that specific point, could youalso, if you have the information available, give us your view of the current provisions in eachof the state acts?

Mr Bell—In so far as compliance with international standards is concerned?

Senator GEORGE CAMPBELL—In respect of protected action or limitations upon it.

Mr Bell—As bearing on pattern bargaining specifically?

Senator CARR—Yes.

Mr Bell—Yes, we could do that, but not by tomorrow. We would need a couple of extradays for that. Is that all right?

Senator GEORGE CAMPBELL—Yes.

Senator CARR—That particular material is urgent. We have to prepare reports veryquickly. On the question of the powers of the Federal Court, you have raised some issues here.In your legal experience, with the exception of the migration case in recent times, have therebeen any other attempts by government to reduce the jurisdiction of the Federal Court?

Mr Bell—There is a limiting of the jurisdiction of the Federal Court in some other areas ofadministrative law—for example, freedom of information. Beyond those specific instances, Iam not aware of any. In regard to migration, that was a special case, because the MigrationAct contained a jurisdiction for review in itself and what was removed was the capacity of theFederal Court to apply other forms of jurisdictional review. In other words, the legislaturesaid, ‘This is the only one that applies.’ It is also important to note that the limitation on theFederal Court’s power in the migration area did not involve the exclusion of the anti-suit in-junction power.

Senator CARR—There has been public discussion from government representatives sincethe MUA dispute about the capacity of the Federal Court to pursue its duty in what they per-ceive to be a correct way. Do you believe there is a level of public vilification now appearingthat is directed at judges of the Federal Court?

Mr Bell—Yes, there is. There is quite clearly a public vilification, and there is an unjusti-fied focus upon particular individual members of the Federal Court as if they stood for thewhole. I have read the cases referred to in Stuart Wood’s submission to this committee whichI deplore. If the committee reads those cases, it will see that many members of the FederalCourt have been involved in antisuit injunction cases in the industrial arena. Judges are ap-pointed from across the spectrum in terms of their prior history. All judges of the FederalCourt have applied the law as expounded in the Cigna case, to which Mr Shorten referred.The principles of law in this area have been expounded in other contexts—equity jurisdictionand commercial jurisdiction. The law is there for the judges to apply, and they have applied itto the letter. They have been criticised for that, because industrial law is an area that naturally



attracts controversy. The Federal Court ought to be defended for applying the law, even incases where it makes them unpopular. It is unfortunate in the extreme that, rather than defendthem, a bill is proposed to limit their powers. Our evidence to the committee is that, just as thefederal court has this jurisdiction in other areas, it ought to be retained in the industrial area.

Senator CARR—Your submission also points to your concerns about the reduction in theindependence of the Industrial Relations Commission. You also draw to our attention the de-cline in the resourcing that is available to the Federal Court. How common is it in Australianlaw to have industrial relations commissions actually reduced in their status and standing?

Mr Bell—I come from Victoria, Senator. In Victoria we do not have an industrial relationscommission so it is all too common in my state. In other states, it is most uncommon, in mynational experience. The present bill, as one participant in the proceedings today has alreadyobserved, contains the word ‘must’ in replacement for the word ‘may’ in several places. Thecommission is reduced in status when its expertise is not respected, and it is not respectedwhere it is positively required to act where, in the exercise of a discretion, it might act differ-ently. The legislation is, essentially, a statement of legislative mistrust in the commission inthose areas where action is mandated. Our evidence to the committee is that if the commissionis worthy of retention at all, then its expertise must be respected and those areas where dis-cretion is needed should be retained.

Mr Lawrence—Could I just say that it is extraordinary to have a reduction in a number ofmembers of the commission in the order of 14 in circumstances where the commission hasassumed much greater responsibilities, particularly by way of the reference of powers, by theVictorian government. The commission has assumed, if you like, jurisdiction over all indus-trial matters in Victoria but has suffered a significant reduction in the number of members thatare available to deal with that jurisdiction.

Senator CARR—Again, in your experience, is there considerable delays in proceedingsbefore the commission? Are you able to advise this committee if there has been a lengtheningin the period of proceedings before that body?

Mr Bell—I want to answer that because I have direct experience in this. I frequently ap-pear in the commission late at night and at weekends. The commission respects what the leg-islature has stated is the object of reaching speedy and expeditious resolution of disputes. Theresult is that it places itself and participants in disputes under extreme pressure. Any personwho is frequently engaged in appearances before the commission would be astounded at thecriticism that there has been delays resulting in the failure to discharge its functions.

Senator JACINTA COLLINS—Just on that issue, we heard evidence on Friday about analmost two-months wait and the need for a commissioner from Perth to fly to Melbourne inorder to deal with just a national wage increase claim.

Mr Bell—Yes. That is also in accordance with my experience. But the reason is that the re-sources of the commission have been contracted by the fact that the numbers of them havereduced to 42 now. The panels are smaller than they used to be, with the result that urgentwork, being that work involving applications for orders to stop industrial action or applica-tions for certificates to permit common law suit in state courts, is afforded priority over ac-tions involving, say, the maintenance or adjustment of wages of ordinary workers. There hasbeen an internal relocation or transfer of resources with the commission, with the result towhich you have referred.

Senator CARR—I have just noticed this provision that the court must determine a par-ticular matter within 48 hours. How consistent is that with the law at large? Is there not a pro-



vision within our legal system for judges to discuss matters and to hear matters on some basisof merit?

Mr Bell—I am not familiar with a provision like that. It is not the court that is bound bythat provision, it is the commission.

Senator CARR—I am sorry, I refer to the commission.

Mr Bell—Yes, I know you do. With regard to the commission, I am not aware of there everhaving been a provision that imposes a definite time limit of that kind. Much less am I awareof a provision that imposes a mandatory requirement to grant the relief sought on an interimbasis where the time runs out. That is what the provision does. It says ‘decide within 48 hoursand, if you can’t, grant the relief sought on an interim basis whatever be the merits unless, ofcourse, the public interest dictates otherwise’. That is an insufficient rider to warrant againstthe injustice that may occur as a result of the relief being granted. In that respect also our evi-dence to the commission is that the provision is unprecedented.

CHAIR—Our time has run out as well actually.

Senator CARR—I have one more question. You mention the issue of ambiguity in thelegislation. Is this just an issue of poor draftsmanship, or do you think there is a broaderproblem with the bill itself?

Mr Lawrence—I think there is a broader problem with the bill itself. If you just look at thedefinitional context of it, there is no definition of what constitutes a campaign, for example. Inour view, firstly, if you have a union that sends a letter to its members in individual work-places urging those members to urge the employer to accede to the demands that are placed onthem—common demands across a number of employers across an industry—that wouldamount to a campaign with significant ramifications: rendering whatever industrial action hasbeen taken as being unlawful and, secondly, it would result in the termination of the relevantbargaining period.

Senator CARR—Are there other provisions that fit into that same category, or is it a gen-eral problem with that definitional section?

Mr Lawrence—There are other provisions that we looked at in particular. For examplethere is no definition of what is perhaps a course of conduct and there is no definition of whatis bargaining. In particular, we find it hard to imagine how an employee of an employer canbe involved in pattern bargaining. But if one looks at 170MWB3 one will see that the com-mission may consider terminating a bargaining period in relation to an employee of the em-ployer. Where that provision comes from is anyone’s guess.

CHAIR—A final question to Senator Tchen.

Senator TCHEN—Thank you, Chair. Gentlemen, your centre’s membership has a largenumber of practising lawyers, particularly in the industrial relations field, I understand?

Mr Bell—That is correct.

Senator TCHEN—Do any of your members have experience in representing employers?

Mr Bell—Some.

Senator TCHEN—A small number or a large number?

Mr Bell—The significant membership of the committee is of lawyers who predominantlybut not always represent employees and unions, but we do incorporate members who repre-sent employers as well.



Senator TCHEN—Thank you. One quick question to you, Mr Bell: you mentioned thesubmission made by Mr Stuart Wood. Mr Wood in his submission referred to an observationhe made in 1999 in November. He made a prediction that should the 1999 Workplace Rela-tionship Bill fail, then he predicted there would be likely to be increased industrial disputes,increase in delay in resolving those disputes and increased complexity in the legal process andhe made the comment that all this had come to pass. Do you agree with him?

Mr Bell—No, I do not.

Senator TCHEN—You spoke approvingly of his submission and I thought you mightagree with him.

Mr Bell—Yes. There has been continued disputation. There has been continued complexityand there has been continued cost. I see that as having been progressing for some years andlikely to continue for the future. So far as industrial disputation is concerned, if he is talkingabout Victoria there has of course been industrial disputation this year. I see that as resultingfrom the termination of bargaining periods in the first half of this year in significant industrysectors, most particularly in building. I do not think it is fair to compare that experience with,say, the situation last year where industrial disputation in that state was low.

Senator TCHEN—Thank you very much.

CHAIR—Thank you very much and thank you for appearing today. I call the department.



[6.13 p.m.]ANDERSON, Mr Alexander John Cairns, Assistant Secretary, Legal Policy Branch 2,Workplace Relations Policy and Legal Group, Department of Employment, WorkplaceRelations and Small BusinessLEAHY, Mr Barry Anthony, Group Manager, Workplace Relations Policy and LegalGroup, Department of Employment, Workplace Relations and Small BusinessSMYTHE, Mr James Edward, Chief Counsel, Workplace Relations Policy and LegalGroup, Department of Employment, Workplace Relations and Small BusinessTACY, Ms Lynne Joan, Deputy Secretary, Department of Employment, Workplace Re-lations and Small Business

CHAIR—I now welcome back the officers of the Department of Employment, WorkplaceRelations and Small Business. The committee has before it submission 34. Are there any cor-rections or changes that you would like to make to the written submission?

Ms Tacy—No.

CHAIR—Thank you. The committee has also received today three answers to questionsplaced on notice on Friday, for which I thank you. I just ask senators, seeing that we haveheard from the department during this inquiry for over an hour so far that—

Senator CARR—We had a lot of questions that did not get asked though. You cut it short.

CHAIR—There is an opportunity today and I would ask perhaps if we could try and con-fine it to the answers that have been provided and also to issues that have been raised since welast spoke to the department. Do you wish to make an opening statement?

Ms Tacy—No.

Senator MURRAY—Ms Tacy, at the last occasion when you were before the committee Idid ask if you could have a look at the right to strike history and provisions in Australian law.Have you been able to do that?

Ms Tacy—Yes. We have provided a brief response. I thought it came today, but after theother few.

Senator MURRAY—It has just been given to me.

Ms Tacy—It is titled ‘Has there ever been an explicit right to strike either federally or inthe states?’ and it very briefly outlines the provisions in Queensland, Western Australian,South Australia, New South Wales and Tasmania.

Senator MURRAY—The second question I have for you arises out of evidence we havehad since you were before us. It relates, depending on who you hear it from, to whether thereare unintended consequences or intended consequences from the legislation—namely, that theprovisions of the definition of pattern bargaining are so wide that categories of work, employ-ees and employers would be caught up and that that would be counterproductive and wouldresult in inefficiency and ineffectiveness and less workability.

There are numerous examples, but some of the most recent were put to us by Mr Shorten,from the Australian Workers Union, who indicated that pattern bargaining is essential for theclassification of fruit pickers’ rates or nursery workers’ rates or jockeys’ rates. We have alsoheard from Mr Tighe that electricians very much need these systems and from Mr Sutton,from the builders union, who said that contractors need them. My question is: for all of thosekinds of small enterprises where common outcomes are well accepted by employers, is it the



view of the department that the legislation interferes at all with that kind of effective bargain-ing outcomes?

Ms Tacy—I think in that description—and I have not heard some of that evidence here to-day—you said that they were accepted by the employers involved.

Senator MURRAY—That was the evidence that we have had. Of course the fear is that infuture they will not be.

Ms Tacy—In those cases, the legislation does not really affect the progress or the way inwhich those particular enterprises and organisations would either bargain or formalise theiragreements. There are already quite a few multienterprise agreements, for example, certifiedunder the current system, and they cover from small to quite large employers. There is awhole series at the small end, if you like—dial-a-pizza, trolley collection services, manufac-turing, grocers, et cetera. In those cases and in that respect the legislation does not affect howmultiemployer agreements would be entered into.

Senator MURRAY—Mr Smythe, the criticisms of the legislation have been quite precise,but the one that is most marked—apart from the question of balance—is that the pattern bar-gaining definition is not easy to understand, that it is ambiguous. Witnesses were not surewhat it meant. A previous witness said that that will result in a lot of court interpretation andcourt adjudication on these matters. What is your reaction, if you have been able to hear whatwitnesses have said, about the ease with which the definition can be used?

Mr Smythe—I have heard only some of the comments made by witnesses. I think the po-sition, or the view, that the department put at our last hearing was that it is not possible to de-fine every aspect in a piece of legislation and that a significant amount of interpretation is leftto the commission.

Senator MURRAY—Would that be the primary source of interpretation?

Mr Smythe—It would be, yes.

Senator MURRAY—My last question, Ms Tacy, is about this question of the cooling-offperiod. The criticism of it from the unions, apart from their view that it is one-sided—in otherwords, it is designed to favour the employer—is that if there were to be a cooling-off period,the better consequence would be for another step to be available, namely, the step of arbitra-tion, thereafter to resolve a dispute. How do you respond to that criticism?

Ms Tacy—From the government’s point of view, the cooling-off period process is designedto encourage the parties to go back and actually reach agreement rather than for the dispute tobe arbitrated. There still would be the avenue of special case arbitration available under170MX which is unaffected by this, but this was more directed to cases where there is a logjam in the bargaining process. As the commission has been doing in some actual instances,suspending, the idea was to suspend rather than to terminate the bargaining period and to en-courage the parties to try to reach agreement. Of course, the commission would also be able tocontinue its conciliation role with the parties in assisting them to reach agreement during thatcooling-off period.

Senator MURRAY—Thank you

ACTING CHAIR (Senator Carr)—I have a few little notes here that I have managed togather. I am a bit concerned by your submission to us today. It just seems to me, given whatwe have heard from a number of quite distinguished legal practitioners, that the evidence youhave given us in writing is in sharp contrast to what we have heard from other sources. I dothink we need to clarify a few points. The questions on notice that you have responded to and



handed up to us today make this play, for instance, on the question of the powers of the In-dustrial Relations Commission. You make a number of claims here which I do think need tobe examined in a little more detail. You say, for instance, that the proposed provisions in thisbill relating to pattern bargaining give the commission a new power to terminate a bargainingperiod. Can you just advise me whether or not in the old legislation—that is, the one that iscurrently in operation—there was a power for the commission to terminate a bargaining pe-riod if the commission thought that the negotiations were going on without good faith?

Ms Tacy—There is one that is similar to that. Perhaps Mr Smythe can quote the provision.

Mr Smythe—There is a provision which allows the commission to terminate the bargainperiod if it finds that there were not genuine attempts to reach agreement.

ACTING CHAIR—I am not a lawyer. Maybe ‘good faith’ and ‘genuine attempts’ mightmean different things to you, but to me, as a layperson, they mean the same. But you havetold us that there is a new power being proposed in this bill. I am wondering if it is in fact thecase that there is an old power already in the act?

Ms Tacy—Certainly, it is a related power.

ACTING CHAIR—Related; I see.

Ms Tacy—In the bill this time it makes it quite explicit that the commission has this ave-nue.

ACTING CHAIR—The problem is that this new power that you describe, which I say isin fact an old power, is a limitation on the powers of the commission, is it not? There is actu-ally no discretion there.

Ms Tacy—There is discretion—as the response goes on to talk about—in assessingwhether pattern bargaining has been occurring, but there is not, as you say, discretion about—

ACTING CHAIR—What happens after that?

Ms Tacy—If it finds that then it must terminate the bargaining period, which is outlined inhere.

Senator CARR—It must.

Senator JACINTA COLLINS—Can I just clarify at this stage, Ms Tacy, whether the an-swer entitled, ‘The effect of the bill on the role and the powers of the Australian IndustrialRelations Commission,’ is in answer to my question?

Ms Tacy—Yes.

Senator JACINTA COLLINS—Wasn’t my question: how have the commission’s powersbeen limited?

Ms Tacy—This covers both issues.

Senator JACINTA COLLINS—I did not ask for both. It might be convenient to you or tothe minister to present it that way, but that was not the question.

Ms Tacy—It is not an issue of convenience. It is—as I think I indicated on Friday whenthis issue came up—that in some cases a new process and avenue is introduced for the com-mission and within that there is some limitation or guidance about how it then applies that. Ifeel that you really have to—as we have tried to do—run through the various steps and dis-cretion or lack of discretion that the commission has to answer your questions.



Senator JACINTA COLLINS—But you do not know Senator Carr’s issue which was thatpreviously there was a provision with respect to terminating bargaining periods. That is not inthere.

Ms Tacy—No, it is not but we were trying to outline the different new provisions and theway that they would operate.

Senator CARR—Perhaps you can clarify something else for me because I think we haveidentified that this answer is incomplete in that regard. Is it currently the case the AIRC actu-ally has discretion and that not all unprotected action is automatically stopped within the ex-isting law? Is that the case or not?

Mr Smythe—At present, section 127 does not require the commission, if that is yourquestion.

Senator CARR—There is discretion for the AIRC to have a look at these sorts of issuesand perhaps adjudicate on the merits of these particular issues, although I understand torts andvarious other things come into it. But is it the case that the powers of the commission are infact at the moment able to be used in such a way as to provide some discretion for the judgesconsidering any particular matter?

Mr Smythe—Yes.

Senator CARR—This new power you talk about here is once again a clear example of areduction in the powers and therefore I ask you: is this not in fact a very disingenuous answeryou have provided us?

Ms Tacy—In relation to that particular issue which is about 127 orders, our response startswith the description that the commission’s power in making orders is now focused more spe-cifically on actions which it considers would not be protected.

Senator CARR—I am sorry. Obviously, I need guidance on how to read these things justlike the court needs guidance on how to interpret their own powers. In terms of your submis-sions to the ILO, have you drawn attention to the discretion of the commission in terms ofsection 127? Has that been part of your submission in defence of the government’s position?

Mr Leahy—I would have to take that on notice. I cannot recall the specifics of the submis-sions that we have made on that matter.

Senator CARR—It would be very interesting I would think if we could just get a clearerview of what the government’s position has been on that matter. I note here that your answergoes on to say that you asked the commission to determine whether or not actions of a par-ticular group of workers—I note that you confirm that it is only workers that the commissionlooks at. It does not look at the work of the employers, is that right?

Ms Tacy—In terms of pattern bargaining, that is the case, yes.

Senator CARR—It is only workers that you are actually interested in in this particularbill—only workers, not employers?

Ms Tacy—That is correct.

Senator CARR—You say that the commission would determine whether particular claimsfor common wages, common employer entitlements, campaign and claims such as those werenot capable of being pursued at a single business level. You go on to say that these are notdefined. Why aren’t they defined?



Ms Tacy—I think it goes back to the issue that was raised earlier and we canvassed on Fri-day. The way that bargaining will occur in different industries in different enterprises willvary significantly and, therefore, the government has taken the approach in the bill of definingit to a certain extent using the terminology here but then leaving it to the commission to assesswhether that has been occurring.

Senator CARR—You heard the advice of Mr Bell QC to this committee a few minutesago where he said that this was not accepted standard industrial law. There is no history inregard to the approach being taken by this bill. How would you respond to that proposition?

Ms Tacy—I think he is correct to talk about the history. Since 1993, with the developmentof the approach to protected action and enterprise bargaining, these are new concepts and newterms in the legislation but the issues about pattern bargaining in practice have been before thecommission before, under the previous 1993 legislation, and these issues of common out-comes, for example, across industry versus enterprise bargaining have been canvassed inthose proceedings.

Senator CARR—Yes, Ms Tacy, but you say that words such as ‘campaign,’ ‘commonwages,’ common entitlements ‘not capable of being pursued at a single business level,’ are allnew concepts, but there is quite explicit direction to the commission once they find that theseactions have occurred that there must be follow-on actions. Given the importance of theseterms, don’t you think that more effort should be taken by the draftsman to actually get thoseterms defined for us?

Ms Tacy—I think we canvassed again on Friday the intent behind those various terms. Andas I said, from the government’s point of view it considers the commission has the expertiseto be able to assess these issues.

Senator JACINTA COLLINS—While Senator Carr is on this point in relation to your an-swer to the question that I had asked, I want to go to one area which I think is quite a false-hood, and I will give you the opportunity to correct it. You say in the middle of that seconddot point:However, this does not restrain the commission from taking the views of other parties into account, norfrom considering other factors it considers relevant.

Why have you not referred to what is stated in the explanatory memorandum where it saysthat the commission will not be considering the merits of those entitlements. Why have younot referred to that component, very critical I would have thought to future determinations bythe commission about what is meant here?

Ms Tacy—The point about the merits in the explanatory memorandum—as again I thinkwe went through on Friday—was to make it clear that in looking at the particular matters andwhether they were capable of being pursued at the enterprise level or were not, that what wasinvolved was not the commission sitting on or trying to determine the appropriateness in thesense of the level or whether the matter was a good thing, but whether it was not capable ofbeing pursued at the enterprise level.

Senator JACINTA COLLINS—But what if the commission were to determine that thatwas relevant to its considerations? What you have put in the explanatory memorandum wouldrule it out.

Ms Tacy—But the bill’s direction is about considering whether issues are capable of beingpursed at the enterprise level, not trying to bring the commission into a role that it does nothave now in terms of ruling on the merits of particular claims.



Senator JACINTA COLLINS—On several occasions over the last couple of days, Sena-tor Murray has had conversations with various witnesses in relation to the appropriateness ofvarious claims. I think we had the 20-years maternity leave claim. Are they not matters ofmerit, or are they matters of process?

Ms Tacy—I am sorry, I do not quite understand the question?

Senator JACINTA COLLINS—In determining whether a claim is not capable of beingpursued at the single business level, one of the discourses before this committee was in rela-tion to the issue of paid maternity leave, whether it would be appropriate that it be a claim fora few weeks as opposed to a claim for 20 years. Isn’t that an issue of merit and not relevanthere, given what is in the explanatory memorandum?

Ms Tacy—Yes, it would not be relevant under the bill’s provisions if we are talking aboutthe particular quantum.

Senator CARR—Ms Tacy, there is just one question that concerns me. Witness after wit-ness has come before us and said just about every particular action that is taken by a union iscapable of being dealt with, not necessarily being satisfactorily dealt with but being dealtwith, under the terms of this bill. They are capable of being pursued at a single business level.Isn’t it the case that every single action that a union follows would fit into this category ofbeing therefore in breach of this collective bargaining provision?

Ms Tacy—Again, on Friday when we went through this, we did point to some examplessuch as training, portability, occupational health and safety—

Senator CARR—Ms Tacy, I know a fair bit about the VET system; I can tell you all ofthose could be pursued at the enterprise level. The issue of adequacy is an entirely differentquestion, but under the provisions of this bill, it says here:... they are not capable of being pursued at the single business level.

Ms Tacy—I will just be repeating what I said and what others said on Friday. There aresome elements with the examples that we raised that we would say are not capable of beingpursued just at the enterprise level.

Senator CARR—I come back to this point that Mr Bell put to us. Is it not likely, given theambiguity of these issues, that a judge would be likely to interpret these issues in a literalway?

Mr Anderson—We have identified the discretions that will fall to the commission to exer-cise—

Senator CARR—Yes, we have, haven’t we: there is very little.

Mr Anderson—and you are querying the absence of definitions for these terms, so it willbe for the commission, in the first instance, to find the meanings that it wishes to give to thoseterms, having regard to the objects of the act and having regard to the extrinsic materials, in-cluding the explanatory memorandum, the speech and so forth. Then, the commission havingmade its findings as to its powers and exercised its powers, there is the possibility of judicialreview or appeal, but, in that context, questions of error of law will arise. In the absence ofdefinition, I would suggest it would be more difficult for some parties even to challenge acommission view to say that the commission has made an error of law because the commis-sion will have to find the meanings. So the commission will do it first before a judge comes toconsider whether the commission’s decision was so wrong as to need to be overturned.



Senator CARR—Thank you, Mr Anderson, that is very helpful because it demonstrateseven further restrictions on the capacity of working people to actually defend themselves un-der this law. Would you not agree?

Mr Anderson—It puts significant responsibilities on the commission.

Senator CARR—Thank you very much.

Senator GEORGE CAMPBELL—Mr Anderson, in relation to your response on that is-sue, how can the commission exercise discretion in respect to the application of these newlaws if it has no capacity to examine issues of merit?

Mr Anderson—The discretion is not one completely at large as to the sorts of outcomes; itis not invited to create an outcome in the way that it might be under section 170MX, for ex-ample.

Senator GEORGE CAMPBELL—Describe to us what sort of discretion the commissioncould exercise.

Mr Anderson—In determining whether particular claims are for common wages or com-mon employee entitlements, that is forming a view on the facts and what is the meaning asrelevant of that term, given that there is not a definition, the commission has the function ofgiving it the meaning, so there is an exercise in discretion involved in that, not a merits baseddiscretion.

Senator GEORGE CAMPBELL—But how would it exercise a discretion? It wouldmake a determination whether the facts were or were not; it would not exercise a discretion inrespect to those facts.

Mr Anderson—That is correct.

Senator GEORGE CAMPBELL—So, in fact, there is no capacity to exercise discretion.

Mr Anderson—The commission would engage with the particular facts before it. It is forthe commission to decide what meaning to give to the terms and how to apply them to thefacts. So it is something on which the commission forms its own view and it is not dictated asto the outcome.

Senator GEORGE CAMPBELL—But it would have no capacity to exercise a discretionin respect to those facts. It would make a determination in respect to the facts. It might err inits determination, but it would make a determination in respect of the facts based on the leg-islation, which, as Mr Smythe or Mr Leahy said, if it does not suit, will immediately find itsway into higher court for argument, for appeal. And I would think that the capacity to exerciseany discretion, if there is any, or any commonsense would be very quickly taken out of thehands of the commission because, as we heard from the legal people who appeared beforeyou, their view of all of this lot is that it is mandatory in its application.

Mr Leahy—I think the point that Mr Anderson is making is that, in the terms of the legis-lation, the commission is required to be satisfied about various matters, and it is in terms ofthe commission being satisfied that it has discretion.

Senator CARR—With regard to the word ‘all’—

Senator GEORGE CAMPBELL—If I can just finish this point, has it got discretion inrespect of being satisfied?

Mr Leahy—If you look at the legislation and just take 170LGA(1)(a), it says the commis-sion is satisfied that the action ‘forms part of a campaign that extends beyond a single busi-



ness’. So there is discretion there—it has to make a judgment about whether or not the actionforms part of a campaign beyond a single business and, under (b), ‘is contrary to the objectiveof encouraging agreements to be genuinely negotiated...’ So to that extent there is a require-ment—

Senator GEORGE CAMPBELL—It is not a discretion, it is a judgment

Mr Leahy—It is a judgment, but in exercising that judgment there is discretion.

Senator CARR—Which will be exercised very easily, I would have thought, when theunions perform a function. I was speaking to more than one employer about one issue at thesame time. But I notice here in 170LJA(2) that the word ‘all’ is used. It says:... all of the common entitlements ... are not capable of being pursued at the single business level.

What discretion is there in interpreting the word ‘all’?Ms Tacy—I think that is fairly straightforward.

Mr Smythe—The point that Mr Leahy was making is that the commission has a certainamount of judgment to be exercised in being satisfied. If the commission is satisfied, it is verydifficult to turn that over in a court because if the commission is satisfied, the commission issatisfied. There is an element of discretion in the commission being satisfied.

Senator CARR—That is right. It is the satisfaction of whether or not the ‘all’ has beensatisfied. That is what it says there, ‘All the common entitlements are incapable of being pur-sued at a single enterprise level.’ It would be pretty easy to be satisfied with that, would it not.

Mr Smythe—I do not know, Senator. The key word I suspect is not ‘all’ but ‘capable’. Thedebate we have been having has been about the meaning of the word ‘capable’. In that regardI would draw your attention to the explanatory memorandum, explaining that particular term.There has been an assumption made by some of the witnesses, and implicit in your question-ing, that ‘capable’ has an absolute meaning and that almost everything is absolutely capable ofbeing bargained at the enterprise level. I would suggest that the explanatory memorandummay give the word ‘capable’ a softer meaning than that. I refer you particularly to the words:An issue not capable of being pursued at the single business level would need to have an intrinsic char-acter that makes it incapable or inappropriate to be pursued at a single business level.

Senator JACINTA COLLINS—Where is this?

Mr Smythe—It is in paragraph 15 of the explanatory memorandum.

Senator CARR—Could you give me some examples that would be incapable?

Mr Smythe—We gave some examples.

Senator CARR—And I have disputed each and every one of them. Are there any others?

Mr Smythe—I do not propose to give you any more. I think we gave you a number onFriday, Senator.

Senator JACINTA COLLINS—A number?

Senator CARR—They said training.

Senator JACINTA COLLINS—And portability.

Mr Leahy—And occupational health and safety awareness.

Senator CARR—But they can be pursued, surely.



Mr Leahy—We have offered you some examples and, clearly, you do not agree with theexamples we have offered.

Senator GEORGE CAMPBELL—Are you saying, Mr Smythe, that there are certain ofthese provisions that are mandatory and certain of these provisions which are discretionary?

Mr Smythe—No, I am saying that the meaning of the words falls primarily by the com-mission being satisfied that the preconditions are met, and that once the commission is so sat-isfied then the mandatory nature comes in. But it is up to the commission to determine whatthe words ‘not capable of being pursued at the single business level’ mean.

Senator JACINTA COLLINS—Mr Smythe, what does ‘inappropriate’ mean when youread the next sentence? It says:The mere convenience or desire of a party to negotiate issues not of that character on a multi employeror industry wide basis would not suffice.

Mr Smythe—That will be a matter for the commission to determine. The point I am mak-ing in response to your question is that ‘capable’ does not necessarily have the absolutemeaning that you attribute to it.

Senator GEORGE CAMPBELL—If you read your memorandum, Mr Smythe, it says:An issue not capable of being pursued at the single business level would need to have an intrinsic char-acteristic that makes it incapable or inappropriate to be pursued at a single business level.

In all the evidence we heard here on Friday and today there was not one person we questionedwho was able to point to one issue that was not capable of being negotiated at the enterpriselevel, not one issue, nor have you come up with one issue.

Mr Leahy—While I was here, one of the union witnesses suggested that portability wasone that was probably within the definition.

Mr Smythe—I think Mr Bell might have suggested that.

Mr Leahy—It was Mr Bell, was it?

Senator GEORGE CAMPBELL—I think a number of union people who have appearedsaid that portability was capable of being negotiated at a single enterprise level.

Mr Leahy—It will be a matter for the commission to determine.

Senator GEORGE CAMPBELL—Whether or not it can or cannot be negotiated as anindividual enterprise?

Mr Leahy—Yes.

Senator JACINTA COLLINS—Let us go to note 1 in the bill. Apart from repetition, canyou explain what is intended there?

Mr Smythe—It is intended to indicate that site agreements may be capable of being pur-sued more broadly than at the single business level if the commission is satisfied of the re-quirements of subsection 170LGA(2).

Senator JACINTA COLLINS—But that is the same general test as applies to everythingelse, isn’t it?

Mr Smythe—The note cannot affect the operation of the section. A note is simply an ex-ample of what might be.

Senator JACINTA COLLINS—But anything is an example of what might be.



Mr Smythe—Yes.

Senator JACINTA COLLINS—So note 1 is simply repetition?

Mr Smythe—If you like.

Mr Leahy—The purpose of the notes is to add some clarity to the legislation.

Senator JACINTA COLLINS—To make us think we are reading the same thing threetimes? If you go into the previous section at point 2, by the time you have got your mindaround three negatives—

Mr Leahy—Some of us find notes in legislation to be quite helpful.

Senator JACINTA COLLINS—But not if they are just simply repetition of the point.

Mr Leahy—I think it deals with three different issues.

Senator JACINTA COLLINS—Under 170LGA, the meaning of pattern bargaining, point2(b), there are three negatives. Can you provide the committee with your view on what shouldbe the appropriate reading of that?

Mr Smythe—I am sorry, which provision is that?

Senator JACINTA COLLINS—At point 6 in the bill, 170LGA, the meaning of patternbargaining, at 2(b), and go past the first subclause of (b) to ‘... is taken to be contrary ...’ Thatparagraph has three negatives in it.

Ms Tacy—Sorry. Was the question about the three negatives?

Senator JACINTA COLLINS—I am asking you if you can provide the committee withyour simple, common, reading interpretation of how that should be read.

Mr Smythe—I think we have been talking about this provision for some time. I do notthink anyone seems to be in any doubt as to the way it should be read. There seems to besome debate about what the words ‘not capable’ mean, but apart from that I think we all seemto be on the same footing on the way it is supposed to operate.

Senator JACINTA COLLINS—Let me take you to some of the evidence. The last wit-ness before us on Friday was Mr De Bruyn. Maybe this will be on page 86 of the Hansard.This is how limited we are in this inquiry: we do not have final Hansard to refer to here. Ihave only a preliminary draft, so you will have to bear with me. The final component ofSenator Murray’s concern was:In other words, can you still carry on devising industry-wide policy?

Mr De Bruyn in response said:I think you can proceed with common claims across an industry but the bill empowers an employer togo to the commission and say, ‘This is pattern bargaining,’ and the commission then is required, as thebill is written, to terminate the bargaining period.

Senator Murray then said:But the commission can reject it if it believes that it can be pursued at the single business level.

Mr De Bruyn replied:No. We read the bill the other way around.

Are you not aware of this evidence?Mr Leahy—We have not seen the Hansard.



Senator JACINTA COLLINS—Are you aware of the evidence of AIG, claiming that anumber of people have misinterpreted the meaning of the bill? It is in their submission. I tookthem to task over the fact that they had made that assertion but had not backed it up with theirunderstanding was of how it should be read.

Ms Tacy—I have not seen Hansard or the evidence of AIG either. We can take on noticeour views on that issue in relation to those two sets of evidence.

Senator JACINTA COLLINS—Given the time frame that we are on, I am absolutely as-tounded that the department can track other inquiries we are having with people that sit in thebackground and observe every minute of our hearings but on this matter, where you have sucha truncated time frame, you cannot answer matters that were in evidence before us on Friday.This is not a time frame of our choosing. This is of the minister’s choosing and you cannotrespond to differences in interpretation—in this case, of a paragraph in the bill that includesthree negatives.

Ms Tacy—As My Smythe has said, we have been through the operation of those provi-sions. We will certainly look at the evidence that you mentioned. We will do it very quicklyand provide comment on it.

Senator JACINTA COLLINS—Thank you. I would ask you also to look at the questionsthat I asked Mr Hamilton, from the ACCI, where I put to him a view about how this provisionshould be read and how you should take into account that final rider that a claim be capable ofbeing pursued at one enterprise. I would ask the department to give their considered viewabout how this committee should interpret that provision.

Ms Tacy—We will look at his evidence, that interchange as well.

Senator CARR—How was the attack on the Federal Court justified?

Mr Smythe—I am not aware of the bill being an attack on the Federal Court.

Senator CARR—You don’t? Numerous witnesses have put to us that the clauses in regardto the anti-suiting arrangements are an attack on the Federal Court.

Mr Smythe—I don’t believe they are an attack on the Federal Court. It is an attempt to re-store a balance to the bill to ensure continued access to common law remedies, an accesswhich is contemplated by the present provisions of the act and which is intended by the leg-islation to be qualified only by section 166A and by dint of recent trends in respect of anti-suitinjunctions have had the effect of reducing, if not denying, access to common law remediesand the provisions are intended to redress that balance.

Senator CARR—It was put to us a short while ago while you were still in the room thatthe particular provisions of this bill may be unconstitutional. Have you examined that issue?

Mr Smythe—We have had advice on that issue, yes.

Senator JACINTA COLLINS—Have you tabled that advice?

Mr Smythe—No.

Senator CARR—What is the nature of the advice?

Mr Smythe—The nature of the advice is that it is not unconstitutional.

Senator CARR—So you have considered the issue of its constitutionality?

Mr Smythe—We have.

Senator CARR—You are aware that this was an issue beforehand?



Mr Smythe—Yes.

Senator CARR—How do you respond to the criticisms that were made to us, perhapswhile you were still in the room, about the nature of these particular provisions in regard tothe Federal Court’s powers?

Mr Smythe—I thought I just had. They are not an attack on the Federal Court, they are anattempt to redress an imbalance which has been occasioned by a trend in anti-suit injunctions.

Senator JACINTA COLLINS—Mr Smythe, why is there not a measure to deal with theSupreme Court similarly?

Mr Smythe—The Commonwealth lacks the constitutional power to inhibit the SupremeCourt in that way.

Senator CARR—But if it had, you would?

Senator JACINTA COLLINS—You would, wouldn’t you? It is one of those matters thatyou are seeking agreements from the states on, isn’t it?

Mr Smythe—It is not up to me, Senator.

Senator JACINTA COLLINS—In relation to the question that you have answered in re-lation to our international obligations, your footnote point 1, when was that case? There is nodate there.

Mr Anderson—It was the pilots case a fair while ago.

Senator JACINTA COLLINS—What year was that?

Mr Leahy—I think it was 1988.

Ms Tacy—We will confirm that date.

Senator JACINTA COLLINS—Apart from 1988, until you have a matter go to the verypeak level within the ILO, you are not going to be prepared to concede the countless exam-ples where the ILO has sought that we change our policy position in Australia?

Mr Leahy—We have had this discussion before, Senator, and it is a process of ongoingdialogue. We are adhering to the normal processes of the ILO and will continue to do that.

Senator JACINTA COLLINS—And you will continue to say that you are misunder-standing and that you are not seeing all the evidence until you finally get a determination fromthe peak body at its highest level. Is that the case?

Mr Leahy—We are still in dispute with the ILO about —

Senator JACINTA COLLINS—You are in dispute with the ILO?

Mr Leahy—We are continuing discussions.

Senator JACINTA COLLINS—They are very interesting words, Mr Leahy, thank youvery much. That is very useful evidence.

Mr Leahy—We are continuing discussions.

Senator CARR—This is the third year in a row you have been in dispute with the ILO. Isthat the case, that this is the third year in a row you have been in dispute with the ILO?

Mr Leahy—I think we have been on this issue. On the issue of collective bargaining andthe right to organise we have been discussion, or in dialogue, with the ILO since 1998.

Senator CARR—This is the third report thought, is it not?



Mr Leahy—No, it is not. The process is that we have only had to report once following—

Senator JACINTA COLLINS—No, we don’t mean your reports, we are saying their re-ports.

Senator CARR—Is this the third time that they have drawn attention to this?

Mr Leahy—I think there have been two or three occasions, yes. But, the government dis-agrees with it.

Senator JACINTA COLLINS—Concerning chart 3.5 in your submission to us, is it pos-sible to do a similar graph for AWA completion dates?

Ms Tacy—What page is that on?

Senator JACINTA COLLINS—Page 23.

Ms Tacy—We will have to check that, I am not sure.

Mr Leahy—I would not have thought we could, but we will check it for you.

Senator JACINTA COLLINS—Yes, I would be interested if you could. I am also inter-ested in the definition that is used in relation to the workplace agreements database as a defi-nition of pattern bargaining. Could you provide the committee with your considered view ofwhat that data would then look like if the definition in this current bill of what would be re-garded to be pattern bargaining were applied to the workplace agreements database?

Ms Tacy—I think the workplace agreements database looks at patterns and patterningwithin agreements—I know that is getting a bit fine in the semantics.

Senator JACINTA COLLINS—But the data would look very different if you were—

Ms Tacy—We would probably code it in a different way if we took the straight definitionfrom the bill.

Senator JACINTA COLLINS—Yes, I want your considered view on how that data wouldthen look if you applied the definition as it exists in the bill. I think that is actually more therelevant issue, rather than what patterns currently exist—not that I am sure they really help ustarget campaign 2000 anyway.

Senator TCHEN—Don’t worry, Mr Leahy. I think most Australians would not be con-cerned that we are in dispute with ILO, provided it is still in Australia’s national interest. MsTacy, in the written information you provided for Senator Murray about the right to strike invarious states in Australia, I notice you do not have any description of Victoria. I assume it isbecause Victoria has transferred its industrial power to the Commonwealth?

Ms Tacy—That is correct.

Senator TCHEN—But can you tell me whether there was any right to strike in Victoriabefore the power was transferred?

Mr Anderson—There was no right of protected action under the Employee Relations Act.

Senator TCHEN—Right through the 1980s?

Mr Anderson—I am not aware of the situation under the pre-existing legislation.

Senator TCHEN—Thank you. If you look at the end of proposed section 172LGA(4), anumber of witnesses throughout these two days of hearing have been encouraged to describethis particular subsection as requiring the commission to take the view of the employer. Is thathow it is supposed to be read?



Ms Tacy—It is meant to be read that the commission must have particular regard to theviews of the employer.

Senator TCHEN—Does that mean the employer’s view prevails?

Ms Tacy—I think there is a provision that relates to this one that before it terminates thebargaining period, the commission must—

Mr Smythe—It is section 170MWB(2), Senator.

Senator TCHEN—Is it the intention to say the employer’s view should prevail?

Mr Smythe—No, it is not the intention that the employer’s view should prevail. It is justthat there is an emphasis on the employer’s view.

Senator TCHEN—Thank you. There are a number of issues that have been raised aboutinternational standards. On the issue of international standards, can you advise us, the com-mittee, if there are any other countries which provide all of the following protection for em-ployees and trade unions? I will list them for you: compulsory arbitration of awards; an inde-pendent industrial relations commission; compulsory arbitration of safety net wages by the in-dependent tribunal—that is the commission; conciliation and in some cases arbitration of dis-putes; rights of registration of unions; rights for unions to notify disputes and seek resolutionof disputes and minimum standards of employment; rights to collective bargaining; rights toindividual bargaining; rights to strike over enterprise bargaining, collective or individual;rights to pursue unfair dismissals; rights against discrimination based on union membership;reliance on awards or agreements; the taking of protected actions; an office of EmploymentAdvocate; taxpayer funded inspectorate; right to equal pay for work of equal value; and theright to freedom of association. Are there any other countries that provide these whole raft ofrights?

Ms Tacy—The whole package that you mentioned?

Senator TCHEN—Yes.

Ms Tacy—Not that whole package.

Senator TCHEN—To your knowledge?

Ms Tacy—Some elements of it.

Senator TCHEN—Do countries, again to your knowledge, which allow industry wideprotected action also provide all these features I have named that are provided under Austra-lian laws and practice?

Ms Tacy—Not all those features. I guess the main difference in the ones that I took downto a number of other countries is the provision of an award safety net with compulsory arbi-tration attaching to it.

Senator TCHEN—So is there any danger of Australia beginning to make a country likethe former Soviet Union or the Democratic Republic of Korea look like a workers’ paradise?

Ms Tacy—I do not think so.

Senator TCHEN—Thank you.

CHAIR—Thank you very much and I thank the department for appearing again. That con-cludes the committee’s inquiry into the Workplace Relations Amendment Bill 2000. I thankthe officers of the department.

Committee adjourned at 7.01 p.m.

Documents

SENATE - Parliament of Australia · CHAIR—We resume the public hearing of the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee inquiry