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COMMONWEALTH OF AUSTRALIA Official Committee Hansard SENATE STANDING COMMITTEE ON EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Reference: Fair Work Bill 2008 TUESDAY, 27 JANUARY 2009 BRISBANE BY AUTHORITY OF THE SENATE INTERNET Hansard transcripts of public hearings are made available on the inter- net when authorised by the committee.
The internet address is: http://www.aph.gov.au/hansard To search the parliamentary database, go to: http://parlinfoweb.aph.gov.au SENATE STANDING COMMITTEE ON EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Members: Senator Marshall (Chair), Senator Humphries (Deputy Chair), Senators Arbib, Cash, Collins, Crossin, Fisher and Siewert Participating members: Senators Abetz, Adams, Allison, Barnett, Bernardi, Bilyk, Birmingham, Mark Bishop, Boswell, Brandis, Bob Brown, Carol Brown, Bushby, Cameron, Colbeck, Coonan, Cormann, Eggleston, Ellison, Farrell, Feeney, Fielding, Fierravanti-Wells, Fifield, Forshaw, Furner, Hanson-Young, Heffernan, Hurley, Hutchins, Johnston, Joyce, Kroger, Ludlam, Lundy, Ian Macdonald, McEwen, McGauran, McLucas, Mason, Milne, Minchin, Moore, Nash, O’Brien, Parry, Payne, Polley, Pratt, Ronaldson, Ryan, Scul- lion, Siewert, Stephens, Sterle, Troeth, Trood, Williams, Wortley and Xenophon Senators in attendance: Senators Abetz, Arbib, Boyce, Cameron, Cash, Collins, Crossin, Fisher, Furner, Humphries, Macdonald, Marshall, Ryan and Siewert Terms of reference for the inquiry: To inquire into and report on: Fair Work Bill 2008 WITNESSES BIGNELL, Ms Julie, Branch Secretary, Australian Services Union; and Executive Member, Queensland Council of Unions ........................................................................................................................ 29 BROWN, Mr Donald Keith, Queensland Workplace Rights Ombudsman................................................ 47 COONEY, Mr Stephen Munro, Manager, Workplace Relations, Local Government Association of Queensland Inc............................................................................................................................................. 21 GOODE, Mr Anthony Robert, Director, Workforce and Organisational Services, Local Government Association of Queensland Inc.................................................................................................. 21 HODGE, Mr Phillip, Manager, Member Assist, Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch..................................................................................... 29 INGLIS, Ms Kerry, Industrial Officer, Electrical Trades Union, Queensland .......................................... 39 MONAGHAN, Mr Ron, General Secretary, Queensland Council of Unions............................................. 29 NANCE, Mr Stephen, State Manager, Workplace Relations Services, Chamber of Commerce and Industry Queensland ................................................................................................................................ 11 PEETZ, Professor David, Private capacity.................................................................................................... 56 PLATT, Mr Christopher, Director, Workplace Policy, Australian Mines and Metals Association........... 2 RALSTON, Ms Deborah, Advocate, Queensland Council of Unions.......................................................... 29 ROGERS, Ms Patricia Carol, Industrial Officer, Communications, Electrical and Plumbing Union ................................................................................................................................................................. 39 SIMPSON, Mr Peter John, Assistant Secretary, Electrical Trades Union, Queensland ........................... 39 USSHER, Ms Wendy Deniese, Principal Investigations Officer, Queensland Workplace Rights Ombudsman ..................................................................................................................................................... 47 Tuesday, 27 January 2009 Senate EEWR 1 Committee met at 9.00 am CHAIR (Senator Marshall)—I open this public hearing.
On 25 November 2008 the Senate referred to this committee an inquiry into the provisions of the Fair Work Bill 2008 for report to the Senate by 27 February 2009.

This bill is the second of two major pieces of legislation which give effect to an election commitment of the government to establish a new industrial relations system to come into effect in 2010.
Last year the parliament amended the Workplace Relations Act 1996 to prevent the making of AWAs and to enable the process of award modernisation to commence.

This second bill will, among other things, institute a strong safety net of 10 legislated National Employment Standards for all employees at an enterprise level and an enterprise level collective bargaining system that will ensure a modern and simplified award system and strengthen protection from unfair dismissal.
A new regulatory body, Fair Work Australia, will assume the functions of a number of current agencies so as to streamline workplace relations processes in regard to wage setting and award variations, good faith bargaining and resolution of disputes.

The government has consulted widely with industry groups and unions in the drafting of this bill.

These hearings are intended to complement these private exchanges through a more public disclosure of views.
Witnesses appearing before the committee are protected by parliamentary privilege.

This gives them special rights and immunities, because people must be able to give evidence to committees without prejudice to themselves.

Any act which disadvantages a witness as a result of evidence given before the Senate or any of its committees may be regarded as a breach of privilege.

I welcome senators to the first hearing of this inquiry and I welcome members of the public who are in attendance.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 2 [9.02 am] Senate Tuesday, 27 January 2009 PLATT, Mr Christopher, Director, Workplace Policy, Australian Mines and Metals Association CHAIR—Welcome.

Thank you for your submission to this inquiry.

I now invite you to make some opening remarks.

Mr Platt—Thank you.

For the last two decades, Australian resource sector workplaces have moved from a culture of industrial disputation to one of direct engagement and cooperation.
This is evidenced by the historically low industrial relations disputation statistics, which are presently at nil in the non-coal resources sector.

The improved industrial relations environment has assisted in increased productivity and a forecasted $159 billion contribution Australian minerals and energy exports in 2008-09.

Whilst the exact contribution may be in some doubt as a result of the global financial crisis, there is no disputing that the contribution will still be significant.
It is now just under two years since the Forward with Fairness industrial relations policy was first announced.

It is just one year since Julia Gillard and Kevin Rudd led the ALP into government.

One year ago, resource sector commodity prices and the demand for mineral and hydrocarbons exports were at an all-time high.

One year ago, the average wage in the resources sector was a smidgeon under $100,000 and our largest problems was finding persons to fill both skilled and unskilled job vacancies.
One year ago, ABARE reported that there were $67.3 billion worth of resource projects on the books.

Much has changed in the last year.

Demand for mineral and hydrocarbon exports from our key trading partners has faltered.

Resource commodity prices have crashed.

The global financial crisis has resulted in reduced business and consumer confidence, reduced demand for raw materials and increased unemployment despite considerable reductions in interest rates and multi-billion-dollar stimulus packages.
The speed and depth of the changed economic environment have caught many by surprise.

Australia’s largest resource sector employers have been forced to review their operations and regrettably shed jobs as a result of the changed climate.

What these circumstances demonstrate is that the Australian resources sector remains acutely sensitive to external factors beyond our control and that we must continually strive to become more productive and more efficient.
AMMA’s concerns with the Fair Work Bill would have been made irrespective of the global financial crisis.

However, the presence of that crisis serves to amplify our concerns.

The Senate review of the Fair Work Bill, in our view, must ensure that the proposed reforms do not go beyond the Forward with Fairness election policy and additionally adversely impact on productivity and/or employment.
When the government released the Fair Work Bill, AMMA said that it would compare the bill against the policy, subject to matters which would adversely affect productivity and efficiency.

AMMA’s submission does this in detail.

AMMA contends that the Fair Work Bill departs from the Forward with Fairness policy taken to the election and that it focuses on increasing union powers, despite the fact that this group represents just 13.9 per cent of private sector employees.
AMMA contends that the Fair Work Bill threatens to return the Australian workplace relations system to one that is highly centralised, more restrictive and at risk of being strongly adversarial and controlled by unions.

It is essential that the Fair Work Bill does not undermine the important elements of previous workplace relations reform in order to ensure that our sector continues to make a significant contribution to GDP, which is presently eight per cent.
AMMA’s primary areas of concern are the expansion of union right of entry and access to non-member records as well as significantly increased union powers, including making unions the default bargaining representatives, increasing their right to enter workplaces and giving them unfettered access to employee records, veto over new project agreements and powers to demand business information under the guise of good faith bargaining.
AMMA is also concerned about the increased capacity of the tribunal to impose agreements; the restrictions on employers’ capacity to take industrial action, the reduced flexibility in hours of work and rostering arrangements, the arcane transfer of business provisions which discourage employment, and the increased potential for union turf wars.
To address significant concerns from the resource sector, AMMA has suggested a series of substantial amendments to ensure that there are appropriate mechanisms and controls in the new laws to counteract damaging union claims and conduct under the bargaining framework.
Notwithstanding our concerns and proposed amendments, AMMA commends the government in its process of technical consultation to date, particularly with respect to the legislation, and trusts that this Senate review EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 3 process will allow for further improvements in the bill to overcome the policy decisions taken that AMMA believes will have an adverse impact on the resource sector and the economy more broadly.

Thank you.
Thank you.

CHAIR—Thank you, Mr Platt.

Senator JACINTA COLLINS—Mr Platt, I recently went back and had a look at the speech you made to the Australian Labour Law Association conference in, I think, November last year mostly because, when I read your submission, I sensed a difference in tone.

The tone expressed in the submission to this inquiry, to pick up your own analogy, reflects a different place in the pendulum than your more recent comments, which were around the time of the COIL process.
Would you accept that as a fair impression?

Mr Platt—Yes.

I think what has happened is that, at the time I gave the presentation to the Labour Law Conference, the detail of the legislation had been announced—correct me—on that day.

There were some— Senator JACINTA COLLINS—Had you participated in COIL or not?

Mr Platt—I had participated in COIL but the content of the legislation that was finally tabled obviously was not the same as the information provided to COIL in every respect.
Senator JACINTA COLLINS—But it was in most respects, would you accept?

Mr Platt—If I can ask for some guidance from the chair about my COIL responsibilities in relation to confidentiality in these proceedings.

That may assist me in answering the question.

CHAIR—They are not matters to do would this committee, I am afraid.

It is a call you will have to make yourself.

Mr Platt—The legislation obviously still remains a large document—it is 700 pages.
There are areas of policy in the legislation which differed from that presented to COIL.

In addition, there are a range of changes to the legislation which, on the face of it, look to be very minor but when put together represent substantial changes in focus.

An example is the right of entry provisions.


The government went to the election saying that it would not change the right of entry provisions, but the fact that it has stepped away from agreements and awards regulating right of entry now means that in our sector there will be overlapping coverage between unions.

There will be unions who are not party to an agreement who will now have a right of access, and those provisions have the potential to result in union turf wars.
At the time that I made the presentation to the labour law conference we had only just seen the legislation.

Whilst it is fair to say I had the benefit of the COIL experience, the legislation was obviously in its final form rather than in an embryonic one, and today I also have the benefit of the input from our board reference group.

We have been able to study the legislation in a lot more detail.

Senator JACINTA COLLINS—I raise this point because I want to go back to your analogy of the pendulum.
I thought it was a reasonable one, and when I looked at your submission to this inquiry I thought that some of these proposals look quite extreme when one thinks back to your comment that we need to establish a stable system that is not going to the extreme of the pendulum yet again.

You mentioned the right of entry laws, and I will use that as one example, but I will give you a handful of examples from your submission which I think are extending towards the extreme end of the pendulum.
You suggest that we: Require all investigations of suspected breaches of industrial instruments to be undertaken by an independent government authority.

So you are suggesting that we remove the role of unions in investigation, a role that has been within our system for 100 years.
Secondly, you suggest that we: Alternatively, ensure that union entry is based on historical union coverage … This suggestion does not seem to take into account the employer supported view that we have a national system which needs to be based on corporations power rather than issues such as interstatedness and that we no longer have unions party to agreements in the way they were in the system previously.
I have not read in your submission an acceptance that there are changes to the system which mean we need to deal with unions’ right of entry in a different fashion.

I would dispute quite strenuously that the position that has been put in this bill is different to that which was put in Labor’s policy.

Nowhere in our policy is there a suggestion that right of entry would remain constrained by being a party to a certain kind of agreement.
The next one was: Remove the union default bargaining representative rule … The suggestion that people that people do not join unions— EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 4 Senate Tuesday, 27 January 2009 Senator ABETZ—Chair, can I just interrupt and ask: is there a question or can the witness respond to each point as it is made?

Senator JACINTA COLLINS—I only have one more point to make, Senator Abetz, if that helps you.
Senator ABETZ—That is somewhat reassuring, but I thought this was a question and answer situation rather than a debating forum.

CHAIR—Senator Collins has put to the witness that there are a number of elements of the submission that she wishes to discuss or challenge.

She is putting those things to the witness and the witness will be asked to respond.

Senator JACINTA COLLINS—Thank you.


The suggestion that people do not join unions in order to attract their representation and that the capacity for a person to nominate themselves as their own representative, for instance, is not an appropriate way of dealing with that are, I think, extreme.
Finally, there is the suggestion: … a bargaining representative can only exercise good faith bargaining rights … AND … a genuine majority of employees to whom the agreement will apply voted for the bargaining representative to be covered by the agreement.

I have drawn all of these from page 13 of your submission.

How on earth would that work if you have a series of different unions in one workplace?

Are you suggesting that the majority of employees have to accept all of the representative organisations?
Or are you suggesting that for five union members to be represented by their union they have to convince a majority of the other workers on their site that they should have that right to be represented by a union?

I suggest, Mr Platt, that this is very extreme, and I was somewhat surprised to see it after I had read your previous speech.
Mr Platt—In respect of the right of entry provisions, in an interview with Laurie Oakes on 16 March last year Julia Gillard said: There are right of entry rules under industrial law and we’ve said we will keep the same right of entry rules.

So let us look at what the rules are.

The rules are that right of entry is dictated by awards, and I will get to your issue in relation to constitutionality and the use of the corporations power in a second.
The award system has detailed the unions’ capacity to enter workplaces since 1904, and essentially what that has meant is that in order for a union to access a workplace the union needs to have constitutional coverage to recruit those potential members and also must be a party to an award.

The process of being a party to an award has over a period of time acted to determine the patch of unions.
Where an employer has made a collective enterprise agreement then, unless the union was a party to that agreement, the union did not have any right of access in respect of it.

So where there was a non-union agreement there was no right of entry in respect of discussion purposes.

Where there was an AWA or in fact an ITEA, there was no access to the premises for discussion purposes.
Under the Fair Work Bill, if the union is eligible to enrol those persons as a member then, despite the fact that there may be no award or there may be a collective agreement without a union or there might be a collective agreement with another union, the union will have a right of access.

As I see it, that is not the same as the current right of entry rules.
In relation to your suggestion about the fact that we have now got a system based on the corporations power as a result of the last government’s legislation that it made, the Fair Work Bill itself contains a provision which will allow union respondency to be dealt with in a modern award.

That has not been done but that is not to say it is not possible.

So it is possible under an IR system made under the Corporations Law to have union respondency detailed in a modern award.
Senator JACINTA COLLINS—Wouldn’t that be extremely complex?

Mr Platt—I did not draft the legislation and I did not make the policy, but for some reason the government instructed the drafters to insert a provision which allowed modern awards to deal with the issue of respondency.

I presume they did it for a good reason.

But that is a mechanism that can be used.

The concern to us is that in the mining industry there has always been a tension between the AWU and the CFMEU.
If you want to see evidence of that, if you look at the AWU submission to this body you will see that the AWU has proposed that awards be used in order to determine right of entry.

But putting that aside, there has been a tension between the CFMEU and the AWU in this industry for many years.

In fact, there was a rules case run a few years ago where AMMA’s contribution to the conduct of the rules case was a million dollars alone.
The rerunning of those rules cases and the potential turf wars that will exist as the CFMEU attempt to gain access to either non-unionised areas or areas where the AWU have got a presence and vice versa will do nothing to increase the productivity of this industry and will do nothing to increase our contribution to Australia’s GDP.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 5 Senator JACINTA COLLINS—And you have no confidence that the process established under this bill for the permission to manage such things will work.

Mr Platt—With respect, at the moment there is no process that will preserve the existing historical demarcations or deal with new ones.
AMMA made a submission to the Australian Industrial Relations Commission in relation to award respondency but, as I understand it, the commission is not proceeding along those lines on the basis that the government has announced that effectively the only barrier to right of entry will be unions coverage rules.

The next issue you raised was the question of good faith bargaining and union membership.

People join unions for a range of reasons.


Some people join unions for representation, some people join unions as an insurance policy in case they are dismissed at some later time, some people join unions because they believe that it is something they should do to support a community of interest and some people join unions because of additional services that unions provide.

Eighty per cent of the country decides not to join a union.
Our concern here is that the imposition or provision of the union as a default bargaining representative is not just merely a representation issue.

If someone has a union or potentially multiple unions as a bargaining representative then that union has the subsequent power to be covered by or, in the old parlance, be a party to an enterprise agreement despite the fact that that union may not have been involved in the process whatsoever.
In addition, there is nothing in the bill which talks about the union’s obligations to represent in good faith and there is no code of conduct or any duties that the default bargaining representative has in respect of the employee concerned.

In order to overturn the default bargaining representative provisions the employee has to appoint someone else or themselves.

So they are required to do a positive act to undo something that they may never have desired in the first place.
What we say is that the default bargaining representatives should be able to demonstrate a level of support—and I accept your point in relation to the majority of the entire workplace.

I think it is probably better put as a majority of those persons who that union could represent at the workplace.

In addition, there ought to be an easier process for an employee to have either no bargaining representative or appoint an alternative one.

I apologise for the long answer but it was a long question.
Senator JACINTA COLLINS—Just before you move off that point about the responsibilities on unions, do the registered organisation provisions contain requirements as to responsibilities on both employer and employee organisations?

Mr Platt—Not in respect of bargaining, as far as I am aware.

Senator JACINTA COLLINS—Are you suggesting this is an additional area that has not been looked at in this bill?
Mr Platt—I know that in South Australia they have some provisions concerning bargaining agencies or essentially employer and employee representatives and the provision there basically says that you have to represent the interests of the person you are representing, you must put those interests first and you must not have a conflict in relation to them.

Essentially it is a description of fiduciary duties in respect of the person or group that you are representing.
I would suggest that that would be a worthy addition to this bill.

Senator JACINTA COLLINS—I am out of time.

I have questions but I need to defer.

Senator ABETZ—Thank you for your submission Mr Platt.

On page 5 of your submission you have a heading ‘Key concerns/recommendations’.

Time will not allow me to go through all of them but if I may lead off with the one where you are concerned about the definition of the word ‘record’ in relation to the right of entry provisions.
I was wondering if you could take me through that concern but, more importantly, what sort of information may be included in the employee’s record and the people who are given access to the records and what sort of records might they have access to?

Mr Platt—To put your question into context, the present law allows access to employee records in order to investigate a breach of the act or an industrial instrument.
But access to records of persons who are not a member of the union is protected by a requirement to go to the Australian Industrial Relations Commission and seek an order, and to get that order you have to, basically, present a case that your access is reasonable.

In addition, the record is defined in the legislation and primarily consists of wages records and some base information about the employee.
Our concern in relation to the Fair Work Bill is, firstly, that the protections in relation to union access to employee information have been removed.

It is not just a question of unions being able to access non-member EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 6 Senate Tuesday, 27 January 2009 records.
Unions will be able to access any record of any employee in the business, and all they have to do is put together an argument to say that that is valid in respect of an alleged breach of the act or an industrial instrument.

There is no fetter on that access; there is no person in Fair Work Australia checking that the access is reasonable.

Once the access is given, it includes everything that is contained in a personnel record.

That may well be your application for the position.
It may well be the preliminary drug testing, and that might show that at some point in time you had some drugs present in your system.

It may show the employee’s disciplinary outcomes or performance outcomes.

It could show that your wages have been garnisheed because you have an outstanding obligation under family law or a taxation problem.

There are myriad issues which are unrelated to any breach of an award or industrial instrument that could be accessed.
The problem has arisen because the Fair Work Bill has removed the definition of record, has expanded access to record keeping and has removed the protections.

Whilst there is a provision in there concerning the privacy laws, those privacy laws essentially have an exemption for marketing purposes.

We are aware that the ACTU and its affiliates have been using member information or employee information for canvassing as part of their political processes.

Senator ABETZ—Thank you for that.


I in fact have a document here which refers to the 2007 federal election campaign, when the ACTU did use that sort of information.

Can I tease out further with you some of the information that may be accessed on a person’s personnel file.

There may be the doctor that he or she goes to, or a medical condition from which they may be suffering.
If you are having a look at the job application, if that is part of the personnel file, even the people that they nominated as referees may all be able to become known in circumstances where it clearly does not relate to any industrial matter.

Mr Platt—That is correct.

And there may well be an instance when an employee has been suffering from a breakdown and there has been some accommodation of that condition.

All of that information would be available and there would be no scrutiny of the access.
Obviously, once the information is outside of the company’s domain, there is no control over what can be done with it.

Senator ABETZ—If a person, for example, were to make a complaint about a fellow employee, that may also be on that file?

Mr Platt—That is correct.

Obviously, whether or not there are any union payroll deductions will be on the file as well.
Senator ABETZ—So if somebody is concerned about being stood over in relation to certain matters at the workplace, that might be on the file, which would then be accessible?

Mr Platt—That is correct.

Senator ABETZ—I note that the Fair Work Bill in fact makes reference to the Privacy Act, but you are saying that that does not necessarily provide protections or solutions from a marketing point of view.

Can you just tease that out a bit further for me.


Mr Platt—When you look at the privacy provisions in detail—and we have gone into this in further detail in our submission—it reveals essentially that there is an exemption to the privacy principles for the purposes of marketing.

So in respect of any use of information for those purposes, our view is that the privacy provisions will not offer any protection at all.
Senator ABETZ—Does your organisation have any examples that you could proffer to this committee as to where that has occurred?

There is always the possibility of these things occurring, but do you have any practical example to point to?

Mr Platt—In Western Australia we are aware of some use of employee records for political purposes in the lead-up to the last election.

That is of concern to us.

Since the Fair Work Bill has been announced there has been increased activity, with unions seeking access.
In fact, only recently we had a union trying to rely on the Fair Work Bill for improved access before its introduction.

There are a number of sites that we are aware of that are being targeted for some special attention, and those sites are almost union-free.

So there is a lot of fertile ground for marketing there.

That is the sort of thing that we are concerned about.

Senator FISHER—Can you tell us whether or not you think non-union collective agreements will be possible under the Fair Work Bill.
Mr Platt—I think non-union agreements in this process will be illusory, and the reasons for that are twofold.

Obviously, non-union greenfields agreements have been removed.

In fact, with greenfields agreements, unless you have every eligible union sign on you will not have a greenfields agreement at all.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 7 Senator FISHER—What will that do in the mining sector?
Mr Platt—Essentially that will ensure that any new project where an agreement cannot be reached will have very little chance of proceeding.

Nobody in their right mind will start a significant investment infrastructure project without having agreements in order to prevent industrial action occurring on site.

So, out of that $67 billion worth of future agreements, I suspect that any single union which would be covered by those agreements can essentially veto the project.
In relation to non-greenfields agreements, the way in which the legislation has been drafted, having unions as default bargaining representatives, means that a union that has a single member but has not been involved at all in the negotiation of the agreement can come along at any time prior to registration and ask—and if they ask it will be granted—to be covered by the agreement or, in the old parlance, to ‘be a party to the agreement’.
We know that in relation to greenfields agreements there is a requirement for the employer to tell all eligible unions that they want to negotiate, and if they have accidentally missed any then Fair Work Australia will mop that up.

And, whilst it is not contained in the legislation, we suspect that, as part of its approval process, Fair Work Australia will also notify any eligible union that an agreement has been received and is being processed.
The effect of those provisions— Senator FISHER—Do you have any basis for that suspicion, Mr Platt?

Mr Platt—The only basis I have for the suspicion is the requirement in the greenfields agreement for every union to be notified.
Whilst I accept that the bill as drafted gives a lot of discretion to Fair Work Australia and the intention, as I understand it, is not to bog down the act in prescriptive detail, I suspect that Fair Work Australia will, as part of its processes, be notifying eligible unions of agreements that have been received.

So those factors combined mean that the chances of getting a non-union agreement are very slim indeed.
Senator FISHER—You have referred to, for example, about six unions that could be deemed to be relevant and therefore involved.

Can you flesh out a bit more, from your experience with your members in your sector, how you arrive at six or some other figure?

What are the potential numbers of employee representative organisations that could be jostling for position at the negotiating table where your members are concerned?
Mr Platt—When you look at a construction site, you might find the CFMEU and the AWU, and then you might have the ETU for the electrical people and the plumbers for the sprinklers.

There would also be a nurse, some security personnel and some administrative personnel on site.

I think six would probably be a conservative number.

The problem is exacerbated by the fact that union coverage of modern awards is no longer specified.
So you need to go back to all of the union rules and take into account the demarcation decisions, and you would probably have to look at the transitional provisions for state unions that have come into the system.

That would take me a few days, and I have been in the game for 20 or 30 years.

It would be difficult for an HR manager in a construction company to do it and make sure that they got it right.

Senator FISHER—And indeed it might not be the ultimate call of the HR manager in a company.
Mr Platt—That is right.

Fair Work Australia will get a copy of the document, and if they think that anyone has been missed out they will send out the notification for them.

Senator FISHER—So, at best, the situation is unclear.

Mr Platt—That is correct.

It is very similar to the situation that occurred when the Keating Labor government introduced enterprise flexibility agreements in 1993, when you had to send off a letter to the union secretary.

That pretty much ensured that you got a visit.


In the whole time that they were available I think EFAs numbered about 250 or so.

Senator FISHER—Are the unions with which your members deal happy with this prospect?

Mr Platt—My understanding, as I mentioned to Senator Collins, is that the AWU is not comfortable about having turf wars on the ground and that it put in its submission that awards ought to detail which unions are covered by the awards.

Senator FISHER—Were they given voice in the COIL process?
Are you able to talk about that?

Mr Platt—I am not able to talk about the detail of the COIL process without breaching a confidentiality agreement.

Senator FISHER—Thank you.

Mr Platt, I would like to turn now to good faith bargaining.

What is your view of the extent to which Fair Work Australia may or may not ultimately end up arbitrating outcomes as a result of a so-called good faith bargaining process?
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 8 Senate Tuesday, 27 January 2009 Mr Platt—One of our concerns about good faith bargaining is that there are two notions contained in the legislation which are essentially chalk and cheese.

One is that an employer must consider and respond to proposals, and the other is that an employer is not required to make concessions or to reach agreement on any particular matter.
We are concerned that the tension between those opposing positions may result in an agreement being arbitrated by Fair Work Australia and imposed on the employer.

For example, you might have a union seeking a 30 per cent wage increase.
The employer might say, ‘I’m only prepared to give a four per cent wage increase in the current circumstances.’ And the union says, ‘We want 25 per cent.’ The employer says, ‘Look, I’m sorry, I cannot give you any more than four per cent.’ The union then says, ‘You’re not appropriately considering a proposal and you are not responding to it so we want to go off to Fair Work Australia and get an order to force you to do so.’ But the employer says, ‘I’ve considered it, but I am not required to make any concessions so I shouldn’t have to make a concession.’ The end result may well be that Fair Work Australia decide that a breach in good faith bargaining has occurred and impose an outcome on an employer.
You will always have the spectre of an imposed outcome hanging over your head.

We believe the bill should be changed to address that by having a provision that essentially says, ‘If an employer indicates that it does not wish to further compromise on a particular topic or reach agreement on a particular topic, then no good faith bargaining orders can be made in respect of that topic.’ Senator FISHER—Thank you, Mr Platt.
Senator SIEWERT—I want to go to the area in your submission where you make comments about hours of work and rostering.

You are concerned that the averaging of work hours instead of being 52 weeks will be 26 weeks and that the modern mining award is now 10 ordinary hours.

My understanding from your submission is that you now want to average that back up to 12 hours.

Is that purely for the resources sector?


Many other employers are arguing that there is not enough flexibility and are also concerned about that, so are you arguing for broadening of the so-called flexibility—and I would like to go into what you mean by ‘flexibility’—or are you purely arguing for that for the resource sector?

Mr Platt—I am here purely on behalf of the resource sector.

I will let other parties speak for themselves.


Our concerns arise out of the fact that, under the current legislation, we can average hours over 52 weeks of the year and we can work shifts of up to 12 hours.

Those provisions are specifically provided for in a range of awards, particularly in Western Australia and South Australia.
Our concern is that the NES, taken together with what we know of the modern awards—and the hard-rock mining industry modern award was handed down on 19 December—caps averaging of hours at six months and prevents the working of 12-hour shifts without majority approval.
The direct impact of that is that any current business that works 12-hour shifts that does not have an industrial agreement in place which provides for 12-hour shifts will not be able to continue to work its current arrangements on 1 January 2010.

That will be a major headache for an industry that almost exclusively works 12-hour shifts in its operations and relies on even-time rostering to make most efficient use of fly-in fly- out arrangements at remote sites.
Senator SIEWERT—So you are arguing for a specific amendment for the resource sector.

Is that right?

Mr Platt—If the Senate committee were prepared to recommend to the government that the resource sector could average its hours over 52 weeks of the year and continue to work 12-hour shifts as of right and annual leave would be taken in accordance with the roster, that would satisfy our concerns.
Senator SIEWERT—In terms of the taking of annual leave, if I read your submission and your comments correctly, you think all annual leave should be able to be cashed out—or is that a misinterpretation?

Mr Platt—The area where annual leave is concerned is predominantly in the offshore sector and the exploration sector, where employees work an even-time roster which, over the period of the year, gives them 26 weeks on and 26 weeks off.
The traditional approach in that sector is to use one of two methods: firstly, to cash out the annual leave in its entirety and, secondly, to regard 1.5 or 1.6 days of each two weeks off as annual leave.

That is the area where we are seeking to preserve it.

In addition to that, generally in our sector there is some appetite for the ability to cash out annual leave, particularly where there are extensive accruals.
In the main, that is employee driven and it would be nice to be able to continue that process.

But our main focus is on being able to work even-time rosters in the exploration and the offshore hydrocarbon sector.

CHAIR—We will have a question from Senator Macdonald and Senator Cameron and we will have to then finish with this witness.

Senator IAN MACDONALD—My question is very short.


Mr Platt, you mentioned before that, across the Australian workforce, about 20 per cent of workers choose to join the union.

Your industry would be one of EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 9 the most heavily unionised.

Do you have the figures for just how many of the workers in your industry are members of a union?

Mr Platt—You said that our area would be one of the most heavily unionised.
With respect, that is not the case.

Our area has quite low unionisation.

I should point out the coal sector is quite heavily unionised, although I think it has come down from a peak of 66 per cent to about half.

Senator IAN MACDONALD—’Now’ being?

Mr Platt—’Now’ being at the last ABS statistics that were issued.

The hard-rock sector is around the average level of unionisation figures, and the oil and gas sector is minimal.

So I think it is wrong to say that our industry is heavily unionised.
Senator IAN MACDONALD—So the hard-rock is about 20 per cent?

Mr Platt—Sorry, 13.9 is the private sector employees, and the mining industry is pretty close to that.

Senator IAN MACDONALD—Across the whole of the people you represent, even including coal, which you say is now about 50 per cent—is that right?

Mr Platt—13.9 is the average.

Senator IAN MACDONALD—Really—13.9 per cent of the employees choose to join a union?

Mr Platt—Across Australia.

It is pretty close to one in six.


Senator CAMERON—You indicated that the mining industry was lowly unionised.

The mining industry has spent quite a bit of money trying to promote Work Choices, promote individual agreements and promote de-unionisation, hasn’t it?

Mr Platt—I do not know if we spent any money promoting Work Choices.
In fact, I think in the first month that Work Choices was out we spent some time complaining about some of the minimum standards provisions which restricted our capacity to work our existing rosters.

What we have done is invest a lot of time in having direct relationships with our employees, engaging— Senator CAMERON—Which is in individual agreements.

Mr Platt—Which is engaging our employees.

Senator CAMERON—AWAs, wasn’t it?


Mr Platt—AWAs are a very prominent part of our sector, but an AWA is not the only means by which you can engage an employee directly.

There is a large producer in Western Australia that does not have AWAs but does have a range of common-law contracts with its employees.
Our focus has been on direct engagement between the employee and the employer and the benefits that that provides in terms of being able to quickly respond to changing circumstances, implement changes in workplace practices and have low levels of disputation.

We have invested money in that.

The question as to whether or not someone chooses to join a union is a matter for them, and we have not invested money in encouraging people to join or not to join a union.
Senator CAMERON—But it was very difficult for unions to access some of your members’ establishments under the previous legislation—isn’t that correct?

Mr Platt—There were some restrictions in relation to accessing them at work, but other than that there was no fetter on it.

I think if the employees thought that there was a benefit from joining a union then possibly they would consider it.
But you need to remember that in our industry you are getting paid, if you are a skilled tradesperson, $120,000, $140, 000.

You are at home half of the year.

When you are on site you are accommodated and all of your meals are paid for.

Life is pretty good.

Senator CAMERON—If you have still got a job and you are not summarily dismissed because of a downturn.

CHAIR—We are going to have to wind it up there, I am afraid, Senator Cameron.
Senator Furner has indicated that he has one last brief question, and we will have to end on that.

Senator FURNER—Mr Platt, there appears to be an underlying assumption here that the introduction of Fair Work Australia and the changes in the legislation, particularly the elimination of AWAs, will make some sort of impact on productivity and efficiency.

Can I take you to some contemporary evidence by Professor Peetz, in particular the study Is individual contracting more productive?
In that research he found in fact that Tseng and Wooden, who looked at productivity levels in Australian firms, had found that the combined effects EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 10 Senate Tuesday, 27 January 2009 of union membership and collective agreements produced higher productivity levels than the combined effect of individual contracting and nonunionism.

Also, Wooden went on to find that unions apparently are good for productivity but only at workplaces where unions are active.
I am just wondering what your response is in relation to that with regard to your apparent view that it is going to somehow reduce productivity and efficiency in workplaces.

CHAIR—I do not want to be unfair but could you answer that as briefly as you can.

Mr Platt—I will answer it really briefly.

The issue with the work done by Peetz is that in principle he relies on a comparison of collective arrangements in the coal industry with some individual arrangements in a small sector of the hard-rock sector.
If you have ever visited a coalmine after you remove the overburden, coal is just lying around ready for you to shovel it up and put it into a big bucket and send it overseas.

That is not the case with a goldmine where you have to do a lot of work to get a pea of gold out of every tonne, and on the question about productivity it is very difficult to compare apples and oranges in that case.

I think that Professor Peetz’s analysis ought to be considered with those facts in mind.
CHAIR—We will have to leave it there.

Thank you for your presentation to the committee today, Mr Platt.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 11 [9.53 am] NANCE, Mr Stephen, State Manager, Workplace Relations Services, Chamber of Commerce and Industry Queensland CHAIR—Welcome.

Thank you for your submission and I invite you to make some opening remarks to be followed by questions from the committee.

Mr Nance—Our submission details only seven points.


We looked at how not to go through a thousand-odd pages of legislation and just to try to concentrate on the major issues as we see them.

The issue from a business point of view is simply that over the last 10 or 12 years we have had significant changes across the industrial relations sphere with many amendments coming throughout the year which cause innumerable problems for businesses in trying to understand the legislation.
What we are seeking here is simply to try to put in or make amendments so that the legislation is able to be adapted, so it can be understood by the business sector and by the employees and it can work.

What we are not looking at is situations where we will end up in litigation, end up in industrial disputes, and end up in workplace determinations for unnecessary reasons which will cause aggravation both to the employees and to the employers and unnecessary costs and loss of productivity.
All we are seeking is to have a fair piece of legislation, on both sides of the fence, where both parties can work together evenly to achieve the outcomes that both the employees and the employers want.

Some of the aspects of the legislation in our view have crossed the line—it goes to much towards the employees or too much towards the unions in seeking for them to have their rights.

All we are looking at is trying to balance those rights so that both parties can have an equal say in their work life.
The bill itself does reflect this in certain parts.

We have commended certain parts of the bill to the Senate.

We strongly urge the Senate to look at a unitary system—a national system that will seek to avoid the outstanding issues of partnerships, sole traders and still having two separate industrial relations systems and separate laws involving state and national systems.

That is one of the biggest issues I think this government has to work on in the future.
In respect of the legislation itself, with the enterprise bargaining or the framework for enterprise bargaining our principal concern here is that it is forcing the parties to bargain.

I do not believe that is right.

I do not think any party should be forced to bargain against their wishes, but that is what this piece of legislation is actually doing.

It was commented upon in a good faith bargaining case in Queensland.

Good faith bargaining orders were used.


Ms Gillard raised it in the explanatory memorandum.

I actually did that case.

We argued in the first instance that the employer had every right not to bargain—that the employer had the right to refuse to bargain.

They were paying over award rates—it was not like they were paying the award rates—but they did not want to go down the route of having an agreement forced upon them.

We were successful in the first instance.


The commission upheld our submission on the basis that the employer should not be forced to bargain.

However that decision was overturned in an appeal by the court on the basis that legislation similar to that which is being proposed now actually forces the employer to bargain.

From there it went back to the company.

The company was not prepared to bargain.

It went back to the commission and then back to the company.

It was a very frustrating process.


At the end of the day no agreement was made but there were significant costs to both the companies and the unions incurred in trying to get an agreement in place—all for nothing.

At the end of the day the employees still got paid under their current arrangements, which were well and truly above the award rates.

The unions accepted that.

They understood what those arrangements were and the matter ceased at that point in time.
What we are trying to avoid is having those issues raised again in a federal system.

In respect to right of entry, Queensland has right of entry laws.

They allow unions to come on site.

They allow them to inspect records.

But there is also some protection there for employees who are not members of the union who have given written advice or written confirmation that they do not wish to have their records disclosed to a union official, and those individual rights should be maintained.
That is what we are also seeking.

We are not denying unions the right to inspect; all we are saying is that if there is an individual who wishes their records not to be inspected then that right should be maintained.

That does not mean that the inspectorate does not have that right—they can inspect any books and they can inspect the records.
I would also add, and this is something which was not in my submission, that I would not have any objections if the Queensland state inspectors were given equal rights or similar rights to allow them to inspect records as well.

That happened previously.

Going back a number of years ago, the federal government had a EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 12 Senate Tuesday, 27 January 2009 contract with the Queensland government for the state inspectors to manage compliance issues there.
Again we believe that, because of the number of state inspectors, that will provide the protection that is being sought by this piece of legislation.

On that basis, I conclude my brief overview of our submission.

Senator ABETZ—Mr Nance, you undoubtedly heard the evidence of Mr Platt in relation to right of entry.

I was just wondering very briefly whether you are supportive of the submissions he made in that regard.

Mr Nance—Yes, I am.
Mr Nance—Yes, I am.

Senator ABETZ—Can I just ask in relation to your understanding of your membership, does it require for some job applications at least that your members ask for police records to be provided?

If so, would that then form part of the personnel file of the individual employee?

Mr Nance—In certain industries, their records would be required.

There would also be child records that would be required, such as the blue card.
That is if you are working with children in disability organisations— community based organisations.

Senator ABETZ—So that would be convictions?

Mr Nance—Through police records, it would be established that they did not hold any convictions.

A letter from the Queensland police force would then be issued.

That would be on record.

If they hard records to do with drink driving or some other things then that would be detailed but they would not go towards the issue.

Senator ABETZ—Thank you.


I have a whole stack of questions, but I will just ask one more.

It relates to page 8 of your submission, under the BOOT or ‘better off overall test’.

The very last sentence on that page says: ... if an individual employee makes a submission that a change in hours may impact on his or her family life and therefore he/she could be worst off, as we understand the Bill, the Agreement must not be approved.

Is that still your understanding?


Mr Nance—Yes, it is, in the sense that the legislation states that every employee must be better off.

The term ‘better off’ is not defined.


However, the way we understand it from things in previous legislation, such as the no disadvantage test or the fairness test—and there are a number of other tests—is that, if the hours are changed such that the person has to come in earlier or later, which may impact on their family life, they could put a submission in saying that they are impacted.
Because all employees have to be better off then our understanding is that the agreement must fail because that individual employee is not better off.

That is our issue.

The issue here is that it should be an overall test.

It is very difficult to please everyone in a workplace or to ensure that everyone will be better off.

They can be equal, but it does not say ‘equal; it says ‘better off’.

Senator ABETZ—Thank you for that.


Senator BOYCE—First off, do you know the number of employees who work for members of the Queensland Chamber of Commerce and Industry?

Mr Nance—Directly, we have roughly 4,500 business members.

Indirectly, through all of our affiliated organisations, that goes up to around 25,000 businesses.

If you averaged that, in Queensland it is between seven and 10 employees per business, so you are looking at maybe 250,000 at the peak.
Senator BOYCE—What degree of union membership might there be among those employees?

Would you know that?

Mr Nance—No.

The only statistic that I can recall is the ABS statistics that Chris raised, which is the 13.9 per cent.

Senator BOYCE—Are there any differences in Queensland in regard to that?

I know that Mr Platt was talking about national figures.

Mr Nance—I cannot provide evidence to this committee, but Queensland usually has a lower level of union participation compared to the southern states.
Victoria usually has the highest rate, just above New South Wales.

Senator ABETZ—Tasmania would be— Mr Nance—I keep forgetting Tasmania—I shouldn’t.

Senator BOYCE—You said that you see a danger of demarcation disputes developing because of the way the greenfields project legislation is set up here.
We have already had evidence from the Australian Mines and EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 13 Metals Association around rogue unions being a potential problem with other aspects of the law.

What effect would you see this legislation having if it is introduced holus bolus?

Mr Nance—In respect to the greenfields legislation and the invitation to invite all eligible unions to the table to start the process, that is not new.
We had a similar provision in the Queensland legislation going back a number of years ago.

QCCI were involved and still are involved in a number of the major construction projects and are negotiating a number of the construction projects.

I have to say that from first hand experience that it was very frustrating, because you had so many different unions competing against other unions.

They were always trying to one-up the other unions.
It was virtually impossible to reach an agreement if you had three, four or five different unions around the same table.

That resulted— Senator BOYCE—Did the unions represent the same people in some cases?

Mr Nance—In some cases, yes.

There is always the argument of who was representing who—whether it was traditional demarcation areas or whether they were seeking to expand their coverage into other areas through their eligibility rule.
I am not saying that they did not have the eligibility or right to do it, but because of the way that decisions have been implemented in the past they were restricted.

That resulted in companies and organisations moving across into the federal system, which was a lot easier and where you could have one union or two unions sit down and negotiate construction workplace agreements or infrastructure agreements.

Senator BOYCE—But, of course, that option to move into a simpler system will no longer exist.
Mr Nance—We cannot move back to the state, no.

Senator BOYCE—Yes.

What do you see the effect as being?

Mr Nance—As we see it, it is going to be a very frustrating and bitter dispute.

It is going to be a situation where we do not believe that we are going to achieve agreements in the greenfields area, simply because we do not think we are going to be able to reach agreement between the unions themselves, firstly, regarding coverage and, secondly, with respect to rates.

It will be a difficult process.


We will wait and see, but at this stage our preferred option is to maintain the current system that has operated for numerous years, that has resulted in a very low level of disputations across the industry infrastructure projects and that has been successful.

Senator BOYCE—Thanks, Mr Nance.

Senator RYAN—Good morning, Mr Nance.

My questions relate to your comments around the transmission of business, particularly as they relate to the whole of clause 311 in the bill.
You outline in your submission the discussion around the change from the transfer of assets to the beneficial use of assets, and I wonder if you could further elaborate on whether or not that represents a substantial change from current settled law and what that might mean for your members and employers.

Mr Nance—It is a substantial change in the legislation as it stands now.
It is a little bit vague, and the reason why I am raising it now is that the vagueness of the legislation is something that we would like the Senate to look at and address in this issue.

The issue here—and it is the example that I gave—is related to the use of the asset.

The asset could be a kitchen, for example.

There could be a cleaning contract or a catering contract that comes in.

There is a kitchen already installed there by the employer—the client.
Contractor A loses to contractor B; contractor B picks up a few of the employees from contractor A, but they are using the same kitchen.

The department has told us, or implied to us, that in their view that would be a transmission of business, simply because they are using the asset of the employer.

Normally that would not have been a transfer, because there was no transfer from contractor A to contractor B.
However, because they are using this joint asset, that has now impinged upon it and it could be a transmission of business.

Again, if we are getting down to the nuts and bolts of what may and may not be, the only thing I can see here is that it is going to end up in a lot of litigation.

All I am saying here is: let us make it very clear.
If that was not the intention—and, from the draftspeople I have spoken to, that does not seem to be what they were seeking—then we need to get the legislation changed and make it very clear what was the intent of that piece of legislation.

Senator RYAN—I do not disagree with you that there will probably be a lot of litigation over this, because my attention is drawn to clause 311(1)(c), which relates to the issue of transferring work, which your submission then rests upon.
I understand that this would also represent a change in current law, which predates the current act and on which stand a lot of court cases over the last 50 or 60 years.

Mr Nance—Yes.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 14 Senate Tuesday, 27 January 2009 Senator RYAN—This led me to wonder: if I were an employer seeking to avoid the transfer of business, how would I go about it as it was proposed here?

Mr Nance—By not touching any of the existing employees.
Senator RYAN—So the simple way to avoid the transmission of business, if there were a contracting arrangement, would be to not take on any of the employees from the previous contract.

Mr Nance—Yes, because you would be leaving yourself open to a claim.
Senator RYAN—In these sorts of situations at the moment, is it common for employees, if there were a new contract for cleaning or kitchen services— Mr Nance—It makes a lot of sense to try to retain some of the existing people because they have the knowledge of the workings and they understand the set-up.

Yes, companies will try to retain some of the existing people who have worked on those previous arrangements.
Senator RYAN—But under this, to avoid the transmission of business—because under that situation at the moment, without a transfer of assets— Mr Nance—To avoid the transmission of business, the continuity of service and all those other issues, especially those relating to whether they were working under some form of agreement, then, no, you would not touch it.

Senator RYAN—Thank you.


Senator FISHER—You referred in your opening statement to your organisation’s concerns about good faith bargaining and essentially how that could result in an arbitrated outcome for your members.

How do you see that sitting against assurances given by the Deputy Prime Minister in respect of the bargaining process over the previous 12 to 18 months?
Mr Nance—I think the Deputy Prime Minister is looking at it from the conceptual point of view that, at the end of the process, if you have met and provided information then both parties can walk away if they do not want to make an agreement or agreement cannot be made.

In reality that does not happen.

By that stage both parties’ positions are ingrained and there may have been a lot of animosity in the negotiations.
I have not seen too many occasions when the parties shake hands and say, ‘We’ll call it quits,’ and walk away happy.

It just does not occur.

By that stage both parties are either committed to getting an outcome, possibly through protected industrial action to force an outcome.

If they can get an arbitrated hearing and a workplace determination then that is where it will end up.

Unfortunately, that would mean that a third party is enforcing a decision on a non-consenting party.

Senator FISHER—Indeed.


So much time and energy have been invested in the process by that time.

Mr Nance—Yes.

Anybody who has been involved in enterprise bargaining on this side or on the other side would realise that it is not just a one-day event or something like that.

There is a considerable amount of time spent negotiating those agreements by the company, by the employees and their representatives and, if there are union representatives, by the union.
That can range from three to nine months and even longer—I have been involved in longer ones.

Senator FISHER—You talk in your submission about relevant information—the sort of information that might be recommended as being provided as part of the good faith bargaining process—and how that could potentially lead to an arbitrated outcome.

Can you put some flesh on that bone?


Mr Nance—The issue that I raise is that we have good faith bargaining orders in Queensland, where there were conferences where the unions sought financial statements going back three or four years simply so that they could argue that their 20 per cent claim could be afforded on the basis of the balance sheets.

We spent six hours arguing about the depreciation of a building, because the way a building ends up on the balance sheet depends on how you depreciated it.
The union accountants came in and said the depreciation of a building could have been done another way.

Both ways were quite acceptable and not contrary to accounting rules; however, the way that you did it determined the outcome of the balance sheet, which meant the unions could say, ‘Six or seven percent per year is quite affordable on paper,’ and get a quite favourable outcome.

So we are concerned about having to provide financial statements without any limitations.
One of the points I make is that, if this provision is going to be maintained, it should at least be limited to the previous 12 months; otherwise, we would have to go back years.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 15 Senator FISHER—You paint a scenario where the parties are essentially involved in the minutiae of the enterprise bargaining process, investing a lot of time and energy in it.
To what extent do you think enterprise bargaining will be increased or decreased as a result, in terms of outcomes?

How many agreements will actually result from this longer and potentially far more protracted process?

Mr Nance—That is a very difficult question.

Senator FISHER—Please draw on your immense experience.

Mr Nance—To be honest, it would depend on the union.
Some unions will go a long way to try to get information and take it through many different hearings to obtain as much information as possible.

Other unions will just say ‘Look, okay, we are not worried about the nuts and bolts of balance sheets and all that.

We just want to get a fair outcome, and it will be a different approach.

When you have a provision in there, one union official will use it when they want to and they will not use it when they do not want to.
Senator FISHER—Do you think this legislation will help increase union membership?

Mr Nance—No.

Senator FISHER—Thank you.

Senator CROSSIN—On page 15 of your submission you talk about your first concern with the bill with regard to right of entry.

You submit to us that only permit holders or employee organisations covered by an award or a workplace agreement be given that right.

Does that not, in fact, undermine the very core of the change in the Fair Work Bill?
The fundamental difference between this piece of legislation and any other legislation we have seen in this country is that awards no longer have parties to them.

The very essence of this legislation is that they can cover unions and they give the unions a right to enforce the award, but the right of entry is actually linked to the union’s right to represent.

Mr Nance—Yes.
Mr Nance—Yes.

Senator CROSSIN—Does your submission say to us that you do not agree with the fundamental nature on which awards and agreements would now be struck?

Mr Nance—No, I am saying that if the unions have any eligible right, and they have members on site, then they can come and inspect their books.

In Queensland we have always operated under the common law arrangements.

The state awards in Queensland never—or very rarely—nominated unions.
However, those unions that had the eligible right could come in and inspect the books.

They were the permit holders and they were the ones that were given the authorisation from the inspectorate.

You may have an organisation that was traditionally covered by the AWU.

However, there are other unions with eligible rights that, it could be argued, cover it.
We are seeking to avoid a multiplicity of different unions coming on site and saying ‘We could have the eligible cover for that person and we want to have a look at the books.’ It is not saying that we do not want our permit holders to inspect it, we are just trying to force fences around it so you do not have a multiplicity of unions coming on site arguing that they could cover those people.

Senator CROSSIN—That is right, but those unions would be eligible to come on site.
They will not actually be party to an award any more, but what you are saying to me and what your submission says are actually two different things in my mind.

In other words, you are saying ‘We want the union to be party to the award and to be able to come on site.’ The bill is actually saying ‘Forget that concept.
You do come on site now by virtue of the fact that your eligibility rules enable you to do that.’ Mr Nance—That is what the bill is saying, yes, but what we are saying is that where there has traditionally been a union on that site that has covered those people on that site from go to whoa we do not see why another union—which will argue their eligible rights—could cover them.
We do not know whether they have them and that could end up in court with just what and whom the eligible right does cover, or whether it is in connection with that type of work.

Again, it goes back to my opening statement: what I am trying to avoid is unnecessary industrial disputation and litigation.

Senator CROSSIN—Is that not an instance where Fair Work Australia would step in, if you, as an employer, questioned that?

Would it then be up to Fair Work Australia to determine that?
Would you challenge that, for example?

Mr Nance—You would end up refusing the union a right of entry, which could cause you further problems down the track.

But that is the way you would do it and then you would end up—I am not too sure how you EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 16 Senate Tuesday, 27 January 2009 would do it because that would be covered in the second stage—notifying Fair Work Australia that you have an argument about whether they have the eligible right.
That will then go to the court and you will have barristers and anybody else arguing the toss of the coin about whether that union has the right to come in and whether they have traditionally never been on that site for the last 20-odd years.

That is what I am avoiding.

I am not avoiding the issue of union permit holders having the right to come and inspect the books.

That is not the issue I am raising.


Senator CROSSIN—In your assessment do you think the proposed fair work legislation adequately covers those areas where there might be potential dispute?

Mr Nance—I think there are errors in the legislation which will cause that disputation, and that is what I am seeking to have rectified.
Senator CROSSIN—If you accept the notion that workers are entitled to be represented by a union, by a union of their choice, as long as the union’s rules cover that worker, how do we then enable that to occur in the legislation if it is not in the current format?

Mr Nance—Then it would be a situation where the union official would have to demonstrate that that person is a member of their union, because in order to be a member of the union they would have to go through their rules.
The executive committee of the union or the secretary would have to approve that as a membership, so they would have to have been satisfied that the union would have covered that person, in accordance with their rules.
Whether that was a legitimate approval process or whether that could be challenged would be something that would have to be looked at at a later stage, but at least you have satisfied the first point of view, that the union itself or the union executive believes that that person could join a union.
Senator CAMERON—Mr Nance, I notice that in your submission you say the bill needs to be amended so that an employee organisation is representing the eligible interests of its members during the bargaining negotiations and that it must become a party to the agreement.

Mr Nance—That should be the employee organisation.

Senator CAMERON—Yes.

So you will have the same concern as the previous witness, who basically said that you should not become party to agreements?
Mr Nance—I suspect you are going to get a number of different views on this issue.

Our organisation’s view is simply that if an employee organisation has been involved in the bargaining, has been involved in the good faith bargaining, in the negotiations, then the union should become a signatory to the agreement.
Senator CAMERON—So do you agree with the proposition that if there are two workers on the job who are members of a union that is eligible to be at the bargaining table then it does not matter if there are two members, one member or a hundred members, they should be party to the agreement?

Mr Nance—If those union officials are parties to those negotiations then the answer is yes.
Senator CAMERON—You also say in your submission: The bill needs to be amended to continue the existing arrangements that allow an employer to make a single union project Agreement without … notifying all eligible unions … How many greenfield agreements have your members been involved in in Queensland in recent times?

Mr Nance—They have been involved in a number of greenfield project agreements.

Most of our members are involved on all the major projects up and down the coast.
Senator CAMERON—Have they ever approached the CFMEU to make a single union agreement?

Mr Nance—I would have to say, to the best of my knowledge, no.

Senator CAMERON—So a union which is a major construction union has not been approached by your members to become party to an agreement that they would normally be party to in most general areas?

Mr Nance—With respect, if one could say the CFMEU is traditionally building, building projects are not normally covered by greenfields.
Our involvement has been more in the civil project agreements.

Principally the unions that have been involved would be the AWU, the metal workers union and the ETU.

Senator CAMERON—So you do not do any engineering projects?

Mr Nance—We do get involved in engineering.

Senator CAMERON—Have you done greenfield engineering agreements?

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 17 Mr Nance—Yes, we have, in the past.

Senator CAMERON—Who have you done them with?


Mr Nance—Mainly with the AWU and the metal workers union.

Senator CAMERON—So you could understand why the CFMEU would be a bit concerned about the maintenance of this approach?

Mr Nance—I can understand the basis of the CFMEU’s frustration on not being involved, but I think one also has to balance that against the outcomes of those projects and having very minimal disputation.
From an overseas perspective, they are looking at trying to get the best possible arrangement in place.

They are trying to get their project built on time and they do not want unnecessary disputation.

Senator CAMERON—So you just ignore the legal rights of a registered organisation?

Is that what you do?

Is that right?

Mr Nance—No, the union that covers that type of work has traditionally been the AWU.

Senator CAMERON—In engineering construction?


Mr Nance—And the Metal Workers in the metal construction.

Senator CAMERON—Covering classifications in engineering construction?

I do not think so.

Mr Nance—The Metal Workers would cover them.

Senator CAMERON—Yes, I understand that, but the CFMEU has got rights as well.

Mr Nance—Yes.

Senator CAMERON—And they are being— Mr Nance—Their rights are mainly in the footings of buildings.

But so does the AWU have those rights on that civil construction work.
Senator CAMERON—Okay.

I will go to the last issue.

You say you want the deletion of matters pertaining to the relationship between the employer and the employee organisation.

Why would you want to put restrictions on the flexibility of what an employer can negotiate in an agreement between the employer and the workers?

Mr Nance—What I am saying there is that I do not have objections to the relationship between the employer and the employee because that is a direct relationship.
However, where you are putting in a third party—being the employee organisation—I think that is a different kettle of fish.

I think it is an issue where the employee organisations could be seeking to insert their own policies or their own agenda and not necessarily the agenda of the employees, and that is an issue then that can end up through the good faith bargaining with the final result being negotiated or arbitrated.

Senator CAMERON—Don’t the unions have to have their members support the claim?
Mr Nance—The reality is that if an issue gets raised by a union in the negotiations like that, that will just be raised.

The employees on the site will neither agree nor disagree.

They will just let it go.

Senator CAMERON—How long have you been involved in industrial relations?

Mr Nance—Over 25 years.

Senator CAMERON—So have I, and I just think your statement there is a nonsense.

I have never heard that in my life before.


Mr Nance—Maybe because I deal with a lot of non-union agreements where the unions come in, where you dealt with a lot of union agreements—and they are different worlds.

Senator CAMERON—You cannot say that your statement applies generally, can you?

That statement you have made is just not correct.

Mr Nance—It is a different view.

Can you explain to me what issues you believe should be inserted in there?

Senator CAMERON—I am asking the questions, not you.
When you become a senator and I am down there, you can ask me.

Mr Nance—The issue there is that again it would depend on the negotiations.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 18 Senate Tuesday, 27 January 2009 Senator CAMERON—Why should an employer not have the right to negotiate union related issues if it is supported by the workers on the job and it has been a claim supported by the workers on the job?

Why should there be restrictions on bargaining in that area?
Mr Nance—Why should an employer be forced to bargain those issues if they do not want to bargain?

They are the two end results.

The issue that you are raising is that it can be achieved.

They do not have to go through enterprise bargaining if you want to put notice boards up or anything like that.

Senator CAMERON—The proposition that you have just put to me is not what I am putting to you.
What I am putting to you is that if an employer agrees and the workers on the job agree and there is an element that is about a union related issue, why should that be illegal in Australia?

Mr Nance—It is not illegal.

It is illegal currently if it goes into—or under Work Choices it went into—a workplace agreement.

But it was not illegal.

You could still operate outside of the agreement process.

Senator CAMERON—But why can’t it go in an agreement—the legal document?
Mr Nance—Again, it is a situation where if the parties agree to it then they do not necessarily have to enforce it in the agreement.

They can enforce it without an agreement.

That has to be acceptable as well.

Senator CAMERON—If the parties agree.

But, again, why shouldn’t it be in the document that regulates the terms and conditions?

Why should it be kept to one side?

It is an ideological position, isn’t it?

It is not to do with bargaining.

It is an ideological position from you, isn’t it?


Mr Nance—To some degree, yes.

Senator CAMERON—Yes, thanks.

Mr Nance—But it is also a degree where you are saying that, if the employees agree to do it, then it can go in.

What happens if the employees do not agree for it to go in?

Under the rules here, it will end up being arbitrated and could be forced upon the employer.
Senator CAMERON—If the employees do not agree to it going in—if the union says, ‘We want members to support this,’ and the members say, ‘No,’ then the capacity to achieve that in the agreement is basically nil, isn’t it?
Mr Nance—I do not necessarily agree with that, because I have been involved in discussions where issues that have been raised by the union are not necessarily supported by the employees but they still let it go, because some employees want to— Senator CAMERON—So you are saying unions can go in and undemocratically say to members, ‘You will support this,’ and that is done?

Mr Nance—To some degree, yes.

Senator CAMERON—Where?

Give me an example.


Mr Nance—It has happened in a number of different negotiations.

I am not going to recall it now.

Senator FURNER—The current Queensland legislation dealing with right of entry has been in place since 1991; is that correct?

There were slight amendments made when there was a change of government in the late 1990s.

I think there was an industrial relations minister, Santo Santoro, who introduced requirements to— Mr Nance—He came in in 1995; out in 1996.
Senator FURNER—The only substantive amendment to that legislation was to provide for access to the site by an official, by giving 48-hours notice; that has subsequently been amended to 24 hours notice.

However, on balance, there is a vast difference between the Queensland legislation and the proposed bill, isn’t there?

Mr Nance—Yes.

Senator FURNER—What is that?

Mr Nance—With respect to the right of entry, under the proposed bill the permit holder can come in and inspect all records.
Senator FURNER—And also during working hours?

Mr Nance—During working hours.

Senator FURNER—That is correct.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 19 Mr Nance—They are limited to what they can do during working hours under the proposed bill.

Senator FURNER—Provided they do not disrupt the business.

Mr Nance—That is right.

Senator FURNER—That has worked well since 1991, hasn’t it?

There has not been any substantive exploitation?


Mr Nance—There has not been any major disputation with respect to that.

But it is also the situation under the Queensland legislation that a non-union member has the right to say no to— Senator FURNER—I am not concentrating on that.

I know that is part of your submission— Mr Nance—I thought that was the part you were concentrating on.

Senator FURNER—No.

Mr Nance—Sorry, Senator.


Senator FURNER—No; I am just making parallels between this bill and what applies in Queensland.

Mr Nance—The Queensland right of access has not caused a major issue.

Most unions follow it and there has not been a major issue from either side of the fence.

Senator FURNER—I think all unions follow it.

But, putting that aside, I think you have answered my question.
There has not been any substantial disputation over the current legislation that applies to right of entry in Queensland.

Thanks very much.

Senator SIEWERT—I would like to follow up on the comment you made about greenfields agreements.

Senator Cameron covered the other issues that I wanted to cover.

You said that they have been operating for a number of years.

Do you mean the provisions that were put in place under Work Choices?
Mr Nance—No; prior to that—where you could have greenfields projects with a number of unions—not inviting all unions to meetings.

Senator SIEWERT—Thank you.

In relation to transmission of business, I am interested in the comments you made during your evidence and also in your submission around getting rid of the clause about beneficial use.

My concern is that, if you get rid of that, it allows, I think, for potential abuse of the provisions that are now in the bill.
I presume that some of these provisions have been put in because of the abuses that have occurred under Work Choices, in terms of operational reasons for business changes et cetera.

If you take out beneficial uses, how would you propose dealing with anybody trying to undermine the provisions in the bill?

Mr Nance—Again that is a difficult question.


The end result will be that if an employee or a group of employees believe that they should have their entitlements protected, that would be through Fair Work Australia if there were some issues regarding protection of entitlements or flow-on of entitlements—regarding them being transferred from contractor B to contractor C, for example.
With respect to the industrial instruments, which this is really centred on, under Work Choices they had the protection of at least 12 months for the existing agreement and 24 months for any sort of redundancy entitlements.

Before that, under the previous legislation, the problem was it was very difficult to get out of that agreement when your employees were involved.

That was the problem that a lot of companies saw, and it restricted some of those companies in employing those people.
It is trying to find the right balance.

I am not saying that they are not entitled to it; I am saying that the legislation here could cause significantly more problems than the problems you identified under Work Choices.

Senator SIEWERT—Thank you.

I am not necessarily agreeing, but I am aware of time.

I have got one other question.

A number of employer submissions have mentioned the issue of averaging hours and flexibility.
I may not have read your submission in enough detail—although I have been through it—but you do not seem to mention that.

Mr Nance—The submission I wrote was in conjunction with the Australian Chamber of Commerce and Industry’s submission, which went into a lot more detail and made a lot more specific points.

I could not see a lot of sense in repeating a lot of those issues.

With respect to the issue of averaging hours, we certainly support that the hours should be averaged.
I understand in the mining sector traditionally they had been able to average those hours out over 52 weeks.

From my experience in the maritime industry, their hours are averaged out over that 52 weeks because of the nature of their sea-going employment.

I think that those arrangements should be continued where they have existed, unless there are very good reasons why they should not.

For the rest of the averaging of hours for normal industries, the normal one is two-week rosters or four-week rosters.
If they seek EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 20 Senate Tuesday, 27 January 2009 to average those hours longer than that, they could certainly do that through some form of collective agreement.

Senator SIEWERT—You do not, however, mention it in your key issues, so it is not one of your key issues.

Mr Nance—No.

Senator IAN MACDONALD—Mr Nance, this may not be directly your area, but the QCCI have some concerns about the future economic business growth in Queensland in the next 12 months.
We woke this morning to the news that 70,000 jobs had been axed worldwide.

We are all very conscious of that at the present time.

Do you see this new legislation, in its current form, having an impact on the confidence of Queensland business, particularly small business, to employ and invest over the next 12 months?

Mr Nance—I can only give you my view.

I have no surveys or hard data, but certainly industrial relations legislation always has an impact on how business views future employment.
It does not matter which party is implementing it; it always has an impact.

Especially where employees can access workplace determinations seeking to get greater increases or greater conditions, then that would certainly be a consideration for businesses.

Whether they will employ or not employ is a difficult question, but some employers would hesitate— Senator IAN MACDONALD—Does QCCI have a view on the economic outlook for the year 2009 in Queensland?
Mr Nance—Yes, we have submitted submissions to the Australian Fair Pay Commission.

We have identified in a number of our own surveys and those conducted in conjunction with St George Bank, where the level of investment is reducing, the level of training is reducing, and the level of capital expenditure across businesses is reducing as a result of the economic changes.

The level of confidence is down.


Senator IAN MACDONALD—Does the QCCI have a view about the impact of any changes in the so- called unfair dismissal provisions on the willingness of small business to employ people in what are obviously difficult times internationally?

CHAIR—We will have to end with that answer.


Mr Nance—Certainly, the existing provisions for businesses with 100 or fewer employees gave small and medium sized businesses a lot more confidence that they could terminate employees without ending up in the AIRC for unfair dismissal.

This legislation does provide some avenues for small business, as long as they follow the code.

But unfortunately the code has a kick to it in that if you do not follow the code then the dismissal would be deemed unfair.
Now, small businesses are busy people; they may not cross all the t’s or dot all the i’s.

Again, it will be about how Fair Work Australia interpret the code, but if they take it from what the reading states, that they must fulfil all the requirements, then, simply, if they do not fulfil all the requirements, a dismissal will be seen as unfair.
If that starts to be the attitude of the federal of Fair Work Australia then, yes, certainly, there will be an impact on small business; they would be very wary about appointing staff.

CHAIR—All right.

Thank you, Mr Nance, for your presentation to the committee today.

We will suspend for 10 minutes.


Proceedings suspended from 10.41 am to 10.51 am EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 21 COONEY, Mr Stephen Munro, Manager, Workplace Relations, Local Government Association of Queensland Inc. GOODE, Mr Anthony Robert, Director, Workforce and Organisational Services, Local Government Association of Queensland Inc. CHAIR—Welcome.

Thank you for your submission.


I invite you now to make some opening remarks to the committee, to be followed by questions.

Mr Cooney—Thank you.

The most notable issue that I would like to talk about today is that the Fair Work Bill relies mostly upon the corporations and external affairs powers of the Constitution, as well as some other powers, rather than having the traditional reliance on the conciliation and arbitration power.
For 100 years, the industrial relations system has relied upon the establishment of an industrial dispute which was interstate in nature.

State IR systems have similarly relied upon disputation to trigger access to tribunals for the making of awards and for industrial agreements.
Even when dispute resolution clauses were introduced in awards to contain industrial action, they forced the parties to think in terms of creating a dispute rather than seeking to improve productivity and share the benefits of that by agreement.

The LGAQ sees the primary objective of any workplace relations system, federal or state, as being to promote safe, fair, harmonious and productive workplaces.
We believe that the shift from the constitutional conciliation and arbitration power, which requires the creation of a dispute to enable its resolution, to these other powers will provide a more cooperative approach to addressing the workplace impacts of the environmental, financial, social and demographic issues the country is facing over the next decade.

We all know that the economic situation the country faces and the world faces over the next year or two will be extremely significant.
We also know the environmental challenges that governments are trying to deal with at the moment.

There is a third element coming down the barrel, and that is that in the next decade, from 2010 to 2020, there will be roughly one-tenth of the new entrants to the workforce that we experienced in the 1990s.
At the same time, the baby boomers will be retiring out or reducing their working hours significantly, so we will have a significantly reducing workforce with which to support an increasing number of people in retirement.

That will be a real issue for this country that needs to be borne in mind as we look at this bill.
I also note the submission of the department that discussions with the states regarding the referral powers are progressing well and will hopefully be clarified through the transitional bill.

I make that comment because in our submission we did make comments about the state of Victoria being left stranded and the need to have powers referred in respect of sole traders and unincorporated corporations.

So we are pleased that that will be occurring.


As also noted in the written submission, Queensland local governments now mostly operate within the state industrial relations system, following legislation by the Queensland government to decorporatise councils, with the express purpose of removing council and local government employees from the federal workplace relations system.
It seems incongruent that state governments can create municipal councils under their statutes but can only practically legislate workplace relations matters for councils which are not corporations.
Given the size of, and responsibilities delegated to, local governments, not least following the recent amalgamations in Queensland, it is neither practical nor good public policy to prohibit councils or municipal corporations from engaging in trading activities or to remove their corporate status merely to engineer an outcome in the industrial jurisdiction.
I make the comment also that Brisbane City Council, which has a budget exceeding some of the states’ budgets, remains a corporation and therefore within the federal industrial relations system.

Local government will welcome arrangements which provide certainty and a single jurisdiction for industrial regulation and which do not impede the commercial and other benefits of being corporations.
If it were possible for the federal government, whilst making fair work laws for corporations, to exclude local governments in specified states or of a specific description then the objectives of federal, state and local governments might all be achieved without the imposition of these dubious reforms to our corporate status.

This is another issue that may be addressed through discussions about the referral of powers and the transitional arrangements.
The Department of Employment and Workplace Relations has acknowledged in its submission that discussions with the states in respect of the referral of powers for a truly national IR system will have to address the situation of state government.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 22 Senate Tuesday, 27 January 2009 The Fair Work Bill as it is currently framed provides that a union with coverage of only one job has equal rights at the bargaining table, including for greenfields agreements.
As Senator Cameron noted earlier on, far from the assertion by the department that employers were seeking to bargain with unions with minority coverage, the issue of greenfields and protect agreements was traditionally one of employers selecting which of the competing unions they would prefer to bargain and deal with over the life of the project.

Militant unions were excluded as deals were done with unions which might be seen as more cooperative.
I will return to an earlier theme: a system aimed at agreement making rather than being reliant on dispute their union creation must promote cooperative relationships between employers, employees and representatives.

This cannot occur where employers have to regularly deal with competing unions and unions with a few members and little interest in the sustainability of workplace relations and the commercial viability of business.

They can frustrate the will of the majority.


Employers should only have to deal with one or two principal unions representing their employees.

They should not be subject to unions eligible to represent only one or a few employees holding up agreements and affecting the majority and subsequently challenging the interpretation or application of an agreement at a later date through a compliance or dispute process.
LGAQ suggests that, with a truly national system, the time of unions jurisdiction shopping for a better deal or arrangements more conducive to a particular union has ended.

Stuck in one jurisdiction, however, union coverage may need to be reformed along similar industry and occupational lines to the application of modern awards so that competitive behaviour between unions becomes unnecessary.
This is why LGAQ have suggested that schedule 1 of the Workplace Relations Act, headed ‘Registration and accountability of organisations’—which we understand will be picked up with the new bill—should be revised.

We recognise that unions have played an important role in the establishment of fair working arrangements under the principles of conciliation and arbitration of industrial disputes.
Union structures and behaviours based upon establishing a dispute are outdated and unhelpful in a contemporary workplace relations system which is aimed at fairness, international competitiveness and national prosperity.

Contemporary approaches to employee relations and other bargaining include identifying mutual benefits and utilising interest based bargaining to build consensus to an agreeable solution.
We note that 100 per cent of employees who will be subject to the new fair work system will be employed by an employer but less than 20 per cent will choose to be members of a union.

The question then arises as to why unions should be given almost unfettered access to workplaces and personnel records of employees who have chosen not to be members of those organisations.
LGAQ submits that the legislation should be focused on arrangements and relationships which promote safe, harmonious and productive workplaces and that the principal relationship between the employer and the employee be respected and enhanced.

Therefore, unions should only have access to the personnel records of employees who have given their consent.

Finally, I will just make some comments about unfair dismissal in reference to our submission.
LGAQ supports the use of proper performance management processes to establish performance standards and behavioural expectations.

We support the concept of an easy to use fair dismissal code, especially for any business that may suffer significant loss of reputation and custom due to misconduct of poor performance of an employee.
The government has recognised that small businesses lack the resources to administer an extended process, so we support the fair dismissal code and the minimum period of 12 months for smaller businesses.

The definition of a small business, however, is of some cause for concern.

At less than 15 employees, we think that the number is too small.
We do not know what the right number is and LGAQ has previously expressed the view that setting an arbitrary number of employees is probably not the most appropriate way to go.

There are other measures of business resources, such as the turnover of the business and the size of their assets.

A business may have few employees but a lot of assets and a lot of resources.

In our submission we made a comment about retaining the 100 or less employees simply because that was a number that was currently there.
Even the previous government cannot really explain where that number came from.

We do suggest, however, that maybe the number could be retained, particularly as you move into the coming period of economic uncertainty.

The number could be reviewed and maybe reduced 12 months after the new arrangements are in operation so that, small businesses can really get a handle on the vast range of changes to which they will be exposed.

Those are the main comments that I would like to make.
Employee relations have progressed significantly over the last 25 years.

Australian companies and their employees have been exposed to international competition, outsourcing and offshoring of jobs and completely new technologies and ways of doing things.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 23 We think that any workplace relations system must promote safe, fair, harmonious and productive workplace’s and that that should really be the test for each of the different elements of the new system.

CHAIR—Thank you.

Senator Furner.

Senator FURNER—You touched on your views of the definition of small businesses.
There was an industrial relations task force in Queensland that found that Queensland had an extremely high proportion of small businesses—in fact 90 per cent of businesses had less than 20 employees.

I would think that has struck a balance and indicated that that is a reasonable figure.

I do accept your examination that the previous government had no understanding or no belief of how they reached 100.
Given that that task force established that figure, I would suggest that that is an appropriate amount and is also consistent with what the bill represents.

Mr Cooney—Well, the task force suggested less than 20 and the bill says less than 15.

Other arrangements may have said less than 25.

We do not know what the right number is.

We just think that 15 is too small.


One of the concerns we have is that, particularly in rural Queensland but also in urban areas, local government picks up the slack to some extent when there are downturns in the economy.

We run job creation programs and, with the benefit of some money from the federal government, we are able to bring forward some projects that may have been on the back list of work to be done.
So we have an interest, if you like, in where the mix sits in terms of where there may be unemployment created or employment issues.

Most of the businesses in Queensland, as you have acknowledged, are small in nature.

All we are asking is: how do you judge something as being small to which the fair dismissal code might apply.
Senator FURNER—I suggest the task force has done that in terms of identifying that 90 per cent of businesses in Queensland have fewer than 20 employees—not 20 but fewer than 20—which, given the bill’s proposal, certainly meets that criteria.

I do not see how you can maintain this view that we need to hang onto the 100 given there is no real evidence to demonstrate that that is a definition of a small business.
Mr Cooney—As I commented earlier, the figure of 100 was suggested simply because it was there at the time.

The figure may be 50; it may be 25.

Our real view—as we have expressed during previous inquiries—is that there should be a fair dismissal process which is easy to administer, and I believe that the Fair Dismissal Code achieves that.
The point is simply that, if I am an employer of 16, 18 or 20 employees, as the task force has identified, I actually am not subject to the Fair Dismissal Code provided in the bill and yet that task force found that I was a small business.

Mr Goode may have some comments as well on this.

Mr Goode—I do not take exception to what you are saying, Senator.

I think it makes good sense, and it is the first time I have actually heard a justification for a specific number.
We did make previous submissions to the former government opposing the cut-off of 100.

We wanted to know where it came from, for a start, and we felt it was an inappropriate number to arbitrarily impose.

Our position, having talked to our councils around the state, is that there are probably characteristics defining a small business that justify some form of exemption.

One characteristic, as indicated by Mr Nance, may be the number of employees—whether that is 20 full time or 20 part time.
I would argue that an employer with 20 full-time engineers would probably be better equipped from a resource point of view to be subject to the unfair dismissal laws than a small catering company with 20 part-time waitresses or waiters.
I suppose our view is that we believe there are characteristics of small business that would equip them to be identified for exemption from the unfair dismissal laws but that we do not believe sufficient examination of what those characteristics are has occurred at this stage.

We encourage an enhanced examination of that so that an appropriate cut-off is devised, whether it be 15 or 20, as you strongly indicate, or whether it is linked to turnover or financial resources.
We think it is an important issue that needs closer examination—a bit of scrutiny, that is all.
Senator IAN MACDONALD—Mr Cooney, as you may know, I come from country North Queensland, but I am particularly interested in your proposal 4, which is for an amendment to: … develop and maintain a number of agreements with various parts of its workforce, based upon occupational groupings, business units or sub-units, geographical region or location or any other grouping … Would you elaborate on that and explain why it is of importance to the LGAQ.
Mr Cooney—It is of importance not just to the LTAQ but also to other employers.

Previous systems, both federal and state, have provided for an agreement to be made with a part of the workforce.

The Fair Work Bill does not seem to include the same specification, although it does allude to it further on.
For example, I have worked with the Brisbane City Council for the past 10 years, and we had a situation where our salaried EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 24 Senate Tuesday, 27 January 2009 officers, or half of our workforce, were regulated under the federal system and our operational and trades workforce were regulated under the state system.
And yet the rules within the different acts prescribing part of a workforce did not allow us to make an agreement—for example, for the Brisbane transport division of Brisbane City Council—because of the different ways the two acts described a part of the workforce, which had the salaried officers, trades and some passenger service employees.
In the end, we said we will make one agreement with all of the unions and all of the employees in Brisbane City Council, and it will be certified in both the jurisdictions.

It may be that it is quite appropriate for a business to have an agreement with one site, a geographical location, covering all the occupations on that site because the market that it services may be quite different.

For example, a rural Queensland marketplace may be quite different to a Brisbane based marketplace.
So you may want to have different industrial agreements even though all the employees are employed by the same employing company.

Senator IAN MACDONALD—Are you suggesting that it is not possible under the proposed legislation?

Mr Cooney—We could not find in the proposed legislation the same specification that was in the previous Workplace Relations Act that you could not make an agreement with a part of your workforce based upon occupation, geographic location or part of a business.
Senator IAN MACDONALD—Brisbane City Council, for example, would have different arrangements for dealing with a workforce in privileged inner-city Brisbane than Etheridge Shire Council would have in making an agreement with people in Georgetown or Croydon.

Is that the basis of your comments?

Mr Cooney—Yes, very significant differences.


For example, councils in Queensland are still facing the historical issue of the differences between the federal and state arrangements for allowances and other things in the situation where white collar employees, traditionally in the federal jurisdiction, are being drawn back into the state jurisdiction.

Why is a meal allowance in an award under the federal system different to a meal allowance in the state system?
A supervisor of operational employees under one award gets different arrangements to the employees that they are supervising even though they are all out there on the road laying asphalt or building stormwater drains.

Senator IAN MACDONALD—Will there be a requirement for the Burke Shire Council at Burketown or the Carpentaria Shire Council at Normanton to have a different arrangement to the Brisbane City Council or the Moreton Bay Regional Council?
Mr Cooney—Under the awards, all councils except for Brisbane City Council share the same award structure.

Brisbane City Council has its own set of awards.

The Moreton Bay or Ipswich council share the same underpinning awards.

Senator IAN MACDONALD—Are you suggesting that is not as useful to your member councils as something that allowed for a distinction between, as I say, the leafy suburbs of Moreton Bay compared with Normanton or Croydon?
Mr Cooney—There are different resources available obviously but a council in remote Queensland might only have 40 or 70 employees servicing a very large geographical area.

It would have quite a different focus to a large urban council, and that is true.

They may prefer to have one agreement in the remote— Senator IAN MACDONALD—Are you saying that this proposed legislation does not allow for that?
Mr Cooney—The legislation allows you to have one agreement and, while it refers to it, it does not seem to allow for you to have an agreement with a part of your workforce—the water industry workers or the bus transport employees, for example.

Senator IAN MACDONALD—Or a geographical area?

Mr Cooney—Yes.

Senator IAN MACDONALD—Thank you.

Senator CAMERON—Is this submission supported by all of your members?
Mr Cooney—It was drawn up by the Local Government Association after, if you like, many years of conversation and consultation with the members.

Senator CAMERON—Many years?

Mr Cooney—In terms of the concepts and the issues that they face each day and in bargaining on a periodic basis in dealing with performance management and dismissal cases.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 25 Senator CAMERON—So every council supports this?
Mr Cooney—It has not been put to every council, at this stage.

Senator CAMERON—I did not think it would have been, actually.

It seems to me that you want to go back to Work Choices.

Mr Cooney—I will make a couple of comments there.

The LGAQ, before I joined them, made submissions to an inquiry into the Commonwealth transitional bill of 12 months or so ago and to an inquiry by the Queensland Industrial Relations Commission on some of the shortcomings that they saw in Work Choices.
Similarly, whilst the LGAQ advised councils that they really had to make their own decision about whether or note they were a constitutional corporation.

Some councils felt that they were, and therefore they were automatically captured by the federal system, and other councils felt that they were not, and therefore they were not automatically captured by the Work Choices federal system.

Mr Goode may have some other comments on that because he has been a bit more intimately involved with it.
Senator CAMERON—I do not need any more on that.

Mr Cooney—The LGAQ was never pro Work Choices, pro fair work or pro any other thing.

We live within the laws that are given to us by the state and federal governments.

Senator CAMERON—So, if this legislation is passed as it is, you can live with it.

Mr Cooney—We will live with it because we have no choice; we abide by the law.

Senator CAMERON—Let me tell you why I say you yearn for Work Choices.
You are taking a pretty hardline position on right of entry.

This principle union concept is about allowing workers access to the union.

Low-paid bargaining is about trying to give low-paid workers a chance to bargain, which they did not have in Work Choices.

You want to go back to the Work Choices small business number of 100.

You want an agreement to go to part of the workforce, the next step of which is individual contracts.

Why wouldn’t I think that you are yearning for Work Choices?
Mr Cooney—You can draw conclusions, but the submission is made upon the experience of different councils, as I said.

Some councils chose to use Australian workplace agreements, for example.

Some even used Australian workplace agreements before Work Choices.

We have done local area workplace agreements—or local area agreements, as they are also known—within the framework of the enterprise bargaining agreements, traditionally done with the unions representing the employees that they affected.
So it depends upon how you define Work Choices.

There are elements of previous legislation in the state and federal area that we think are still appropriate and there are elements that we think have had their day or that probably never had their day.

Senator BOYCE—Just to get back to the question of 15, 100 or the 20 that Senator Furner thinks would be a good idea, there are numerous definitions of small and large businesses within all manner of federal legislation.
As I understand it, the majority of those would look at characteristics of the company other than its employee turnover et cetera.

Could you comment on what you feel would be the appropriate characteristics to use?

You have given some examples of problems.

Mr Cooney—I think it requires far more analysis than what I or the LGAQ can submit.
I have to add, on the local government association representing councils, while councils have trading activities, we are not really competitive businesses, so it has different connotations there.

Senator BOYCE—No.

Perhaps what I am asking you is: what things other than the number of employees should be taken into consideration?
Mr Cooney—As we touched on before, things like the revenue or turnover of a business and the size of its asset base, which determine whether a business would be able to tolerate a period of improvement in performance.

In a small business that is highly exposed to its customer base, an employee annoying a customer or a supplier may be intolerable.

The relationship between the employer and the employee may be irretrievably broken down.
So the size of a company can be determined in a number of different ways; it is about its tolerance to manage change.

Senator CAMERON—Because somebody is annoyed, the relationship can be broken down?

Senator BOYCE—Would you care to finish that answer, Mr Cooney?

Mr Cooney—It is simply an issue about the ability of an employer to continue with an employee and the extent to which the employer can tolerate a period of improvement.
Larger employers tend to have processes EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 26 Senate Tuesday, 27 January 2009 in place and the resources in place to be able to find a different job for somebody or give them a period of coaching, whereas a smaller employer—whether they have 15, 20 or 25 employees—may not have the resources to withstand the loss of custom or the disaffection of suppliers.
A customer or supplier may well say, ‘I want something done about that person,’ and the employer may say, ‘I’m giving them a chance.’ At the same time, we do believe that we need arrangements that allow small employers, who are the generators of employment, to give people a chance who may not otherwise get it.

We are very concerned that employers will limit their employment and move to casualisation to avoid the obligations under these new provisions.
Senator BOYCE—I have had a number of those concerns expressed to me.

How many of your members would employ a full-time HR manager?

Would you be aware of that?

Mr Cooney—About 30?

Mr Goode—We have been trying to find that information ourselves.

The difficulty is that with some of our smaller councils a person will perform a dozen different roles.

Senator BOYCE—That is why I mentioned full time, yes.

Mr Goode—Yes.

We have what we call a HR managers forum, and I think we have about 15 to 20.
I would suggest that we would probably have about 15 councils with dedicated, full-time, 100 per cent committed HR people.

Senator BOYCE—Out of how many councils?

Mr Goode—There are 73 mainstream councils, plus you have probably another 10 or so Indigenous councils on there.

Senator BOYCE—There has already been some comment—I think it was from Senator Cameron— regarding your call for written consent for a union member employee’s records to be accessed.
We have had evidence elsewhere about the Privacy Act bumping up against some areas of the Fair Work Bill.

Would you like to talk about why you put up that proposal?

Mr Cooney—The principal reason is that, in our experience, employees have chosen not to be members of unions or members of a particular union.
We have heard a little bit about competition between unions and so forth, and an employee may say, ‘I’m a member of the Australian Workers Union; I do not want the CFMEU official looking at my records.’ An employee may say, ‘I’ve chosen not to be a member of a union and I don’t see why any union person should have access to my personnel records.’ Finally, employees are given pay slips which include their recorded work hours, what they have been paid and any allowances, and if they wanted to share that with a union official then they could, and the union official could then say, ‘Well, I need to investigate,’ and seek approval.
Senator BOYCE—I envisage a situation where perhaps an employer may end up feeling like the meat in a sandwich, with a union calling for records and an employee saying, ‘Don’t give them to them.’ How would an employer proceed in that situation?

Mr Cooney—That is one of the problems with the current Queensland act, to which Mr Nance referred.

An employee can actually ask to not have their records accessed.
We have suggested that employees move the next step further so that company auditors have access, the government inspectors have access but a union official is given access by the employee to their record.

Senator BOYCE—I think pretty much all the submissions we have seen this morning have talked about concerns over issues around demarcation disputes or turf wars between unions if some of the proposals of the Fair Work Bill are not changed.
You have said that a significant proportion of a workforce—you have suggested 20 per cent—should be from a union before the union has access, so you only have one union representing particular areas of the workforce.

Yes?

Mr Cooney—No.

I made the comment that the proportion of the workforce who choose to be in unions is only about 20 per cent.

It is lower in the private sector and it is higher in the public sector, in the local government sector and in government owned corporations.
That is what my comment was about.

Senator BOYCE—There was a suggestion here that unions could not come in if they had just one or two employees.

Perhaps I have mixed up two things there.

Mr Cooney—Most local governments in Queensland do a range of different activities from the traditional road-building and repair, to water treatment and distribution, through to running libraries and so forth.

Senator BOYCE—So this is only in relation to location or occupation?
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 27 Mr Cooney—Any one council may deal with as many as 12 unions, some of which may only have one or two members.

But a union with one or two members has an equal right under the current legislation and the proposed legislation to sit at the bargaining table as a union that has 1,500 members, as is the case in the Brisbane City Council.

So that is the concern.


It is much easier to reach an agreement with one of two people than it is to reach an agreement with 15 people.

Senator FISHER—Mr Goode, in response to Senator Boyce you talked about the extent to which your members employ a human resources person or director.

In assessing that, how would you define ‘human resources person’?
Mr Goode—It is someone who has a full-time dedicated responsibility to look after human resource issues from recruitment, to policies, to industrial relations—the full box and dice.

It is a person who has no responsibility within the council other than dealing with human resources issues.

Senator FISHER—It is a bit of a subjective issue, isn’t it?

Mr Goode—It is a subjective issue but if you are in the HR field you know exactly what an HR person does.
Senator FISHER—So from the inside, looking out, you can work it out?

Mr Goode—Very much so.

But the difficulty is that some of our smaller councils have an HR person who also looks after the rates and other matters as well.

We do not necessarily include them.

Senator SIEWERT—I want to go back to the right of entry issue.

This morning we heard that Queensland already has right of entry provisions, though they are a little different from what is in this legislation.
Have there been major problems with that?

We heard this morning that there had not necessarily been too many problems with that.

Mr Goode—I can only speak from my own experience.

Overall, the answer is probably no.

There are always isolated instances where someone has abused those rights—has not used the right of entry appropriately—and as a result has caused an issue of major significance.
But overall, because of the relationship between our members and the local union officials, generally it has been well respected.

Senator SIEWERT—So what do you think is going to change under these provisions?

Mr Goode—The issue as we see it is that the legislation here provides unfettered access to all employee records at the request of the unions.
We can see that at times escalating to a situation where it can drive a wedge between competing unions, in that unions who are competing for the same employee may be looking for the same records.

Some of our employees will take objection to having their records scrutinised by other parties.

And the person in the middle, who is providing access to those employee records, is the council.

That is our major concern.


Senator SIEWERT—I want to go back to where Senator Cameron left off in terms of the Work Choices agenda.

On page 13 of your submission you talk about low paid bargaining determinations and minimum wage adjustments.

If I have understood your submission correctly you just want to get rid of those provisions, and I am wondering why.

What problems have you had with them and how many of your councils think they will be affected by these provisions?
Mr Cooney—The concern that we have, as expressed in the submission, is simply that there are arrangements under the current and the proposed legislation for the establishment of minimum conditions through the establishment of a minimum wage, minimum adjustments each year and the minimum provisions in the relevant awards.

We have the National Employment Standards providing a good floor—if you like, a foundation for the development of future arrangements.
In the areas of the low paid—the particular industries that we know of, such as cleaning, security, and aged care and child care, for example—we do not have a problem with bargaining between the employees represented by their unions and the employer.

What we are concerned about with this legislation is that that bargaining goes beyond just one employer to multiple employers and then to a determination or arbitration by Fair Work Australia.
So we have moved beyond having a process which was about agreement making, to one which is about an arbitrated outcome imposed upon a number of employers who then say, ‘I don’t like that imposed outcome.
I’ll go and make my own agreement so I can get out of the multiemployer agreement through that low-paid determination.’ Our concern is that if you have a system for developing minimum conditions for the low paid—in fact, minimum conditions for everybody—then to impose an arbitrated EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 28 Senate Tuesday, 27 January 2009 outcome on an imposed bargaining type arrangement is an anachronism.
I come back to the concept that this is about agreement making rather than dispute making.

Senator FURNER—I think you answered part of my question in your answer to Senator Siewert.

I just wanted to clarify the fact that a previous submission today to this committee was from the CCIQ.

They said that there was no substantive disputation with regard to right of entry, and I think you have concurred that that is correct.

Mr Cooney—Yes.

Senator HUMPHRIES—I just have one question, in light of the time.
You mentioned in your submission that there were concerns about the question of state powers over industrial relations once there is a migration of those powers to the federal jurisdiction.

Indeed, that issue was raised by the next group of witnesses, the Queensland Council of Unions.

Does the Queensland government have any mechanism in place for consulting with interested stakeholders about those issues of where state awards and state industrial relations powers sit once Fair Work is implemented?
Mr Cooney—Yes.

Senator HUMPHRIES—If so, are you involved in that?

Mr Cooney—I think I will refer to Mr Goode for that one.

Mr Goode—There are no formal mechanisms established at this stage.

However, we have had ongoing discussions with the relevant government departments and the relevant state minister about where we go from here.

I have no reason to believe other than that we will continue.

So, yes, we will continue to consult and be consulted by the state government on those issues.
We are in a situation where local government has been decorporatised.

We would like to see that reversed, and the only way we can see that reversed is for the Fair Work Bill, or some alternative, at the federal level to formally allow the state government to take responsibility for local government industrial relations within the Queensland jurisdiction.

Senator HUMPHRIES—Do understand it to be the position of the Queensland government to negotiate that so that they can reverse the decorporatisation?
Mr Goode—When the decorporatisation occurred initially, the Queensland government indicated to us that as soon as the federal government had legislated appropriately, so that the states would be exempted from it, then the Queensland government would reverse their decision.

When the decorporatisation legislation was introduced they said that they would consider reversing that decision subject to what is occurring at the time.
So there is no 100 per cent commitment but there is every indication that they would be open to submissions to reverse the decision.

Senator HUMPHRIES—I am sorry I had to ask you those questions but we do not have a submission from the Queensland government so we cannot ask them those questions.

Mr Goode—Yes.

The sooner it happens the better from our point of view.
We believe it is more appropriate for the Fair Work Bill to have a mechanism available, as soon as possible, for local government to be exempted if the state government wishes for us to stay in the state system so that the issue of decorporatisation can be reconsidered or revisited.

CHAIR—Thank you, Mr Cooney and Mr Goode, for your presentation to the committee today.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 29 [11.36 am] MONAGHAN, Mr Ron, General Secretary, Queensland Council of Unions RALSTON, Ms Deborah, Advocate, Queensland Council of Unions HODGE, Mr Phillip, Manager, Member Assist, Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch BIGNELL, Ms Julie, Branch Secretary, Australian Services Union; and Executive Member, Queensland Council of Unions CHAIR—I welcome our next witnesses, the Queensland Council of Unions, to the committee hearing.
Thank you for your submissions.

I invite you to make some opening remarks to the committee, to be followed by questions.

Ms Ralston—I will just indicate for the committee’s benefit that our intention is to make a short presentation, and the representatives from both the Liquor, Hospitality and Miscellaneous Workers Union and the Australian Services Union would like to make a short statement towards the conclusion of our allocated time.

Thank you.
Thank you.

The Queensland Council of Unions’ submission to this inquiry is designed to assist in comparing and contrasting the operation and application of the proposed Fair Work Bill to the Industrial Relations Act 1999.

The basis upon which such a comparison is undertaken is clearly as a result of the policy decision by the federal government to create a national industrial relations system.
To secure this outcome the government has highlighted the transfer of the non-incorporated private sector to the federal jurisdiction.

Such a transfer would require the support of the state regulators along with the adoption of a preferred method to accommodate such a transfer.

As the next stage of legislative activity, the adoption of a transitional bill has not been completed.
Along with any effective indication by the states of supporting a transfer arrangement, there is no clear understanding of how such a transfer would be accommodated.

As such, the Queensland Council of Unions have worked on the premise that to fully consider the Fair Work Bill requires a comparison to what operates within each state jurisdiction—in the QCU instance, the Queensland jurisdiction—to establish areas of synergy and difference.
In undertaking this exercise we do not suggest that the federal government has not ensured an effective review of industrial relations laws at a federal level.

Rather, we suggest that in undertaking such a review to arrive at a national industrial relations system, at least for the private if not for the public sector, requires an analysis of what exists in the state jurisdictions.

To compare the Fair Work Bill to Work Choices is a comparison to bad law.
As the Queensland Industrial Relations Commission indicated in their report in 2007 entitled Inquiry into the impact of Work Choices on Queensland workplaces, employees and employers: The full impact of the Work Choices legislation may not be realised for some time yet.

… … … The Inquiry has serious concerns about the social and economic impact of Work Choices.

Emerging trends show that employees have become extremely apprehensive about job security in this new uncertain work environment.
This in turn has led many employees to refrain from raising normal industrial relations issues, such as occupational health and safety and questionable terms and conditions of employment, with their employers for fear of jeopardising their jobs.
The Inquiry is strongly of the view that the most severe impact of Work Choices will be felt by those less skilled and vulnerable workers … … … … This inquiry also notes the confusion which exists amongst many Queensland workplaces, employees and employers with regard to workplace rights and jurisdiction.
This, coupled with the lack of mechanisms for employees to report, and have heard, their concerns about unfair and unlawful treatment in the workplace, highlights the need for adequate reporting mechanisms for employees.

Later today you will hear from the Queensland Workplace Rights Ombudsman.

This position was established as a direct result of one of the recommendations generated from that 2006 Queensland inquiry.
This office has worked effectively in filling the vacuum which has been created by Work Choices.

No doubt the ombudsman will highlight some of the work undertaken by his office and the issues that have been brought to his attention by Queensland workers and their employers.

What these stories confirm is that there is a clear necessity to bury Work Choices and to establish strong, effective laws for workers and their employers.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 30 Senate Tuesday, 27 January 2009 Workers and employers in Queensland are principally subject to the Industrial Relations Act.

That act is one of the most important pieces of legislation to be introduced this century for the Queensland community.
The Queensland government’s view at the time of introducing the legislation was that to bring about jobs growth and enhanced economic performance it was necessary to work constructively with both workers and employers in delivering these outcomes.
The QCU submission to this inquiry deals with key areas where the QCU contends that a great degree of synergy exists between what is proposed for adoption in the Fair Work Bill and that which exists within the Industrial Relations Act and where the synergy has failed to occur.
The size of the state jurisdiction is an important factor when considering the development of any new federal legislative system, particularly if the legislation is designed to capture or extend its application into what was traditionally state coverage.
Any consideration for transfer arrangements into the federal jurisdiction requires an assessment of the impact such change will have on the industrial relations environment that employees and their employers have experienced within the state’s jurisdiction.

The QCU has endeavoured to establish the level of impact the Fair Work Bill could have on Queensland workers.
We have done so for no other reasons than to ensure that organisationally our affiliated unions and their respective members are fully informed in relation to the impact the Fair Work Bill may have on workers traditionally covered by the Queensland state system.

In comparing and contrasting the Fair Work Bill with the Industrial Relations Act, the QCU has in many instances identified a great degree of consistency in the drafting and content of the bill.

This is to be lauded.


In other areas there are obvious contrasts to what exists and operates within this state.
In light of the fact that there is no specific detail in relation to the content of the transitional bill, nor is there any indication as to the intention of the federal government in its policy direction to ensure ‘appropriate transitional arrangements to be put in place so that those currently covered by state industrial relations systems will not be disadvantaged as a result of the creation of the new industrial relations system’, the QCU has provided this submission on the basis of highlighting areas where transitional arrangements will need to operate.
The recommendations the QCU has identified should be made by this committee are those we contend would create a more robust piece of legislation.

The recommendations we contend this committee should make include where there is a diminution in employment standards between the national employment standards and the state legislative or policy minimum.
The QCU contends that provision should be made to protect those entitlements for workers who transfer into the federal jurisdiction either as a result of a state referring those workers into the federal jurisdiction or alternatively as a result of Work Choices having swept them into that federal jurisdiction.
The application of this commitment should be clearly outlined to ensure that where disadvantage may occur in the national employment standard area that such disadvantage does not occur for those employees previously regulated by the state industrial relations system.

Inquiry members should further recommend that the bargaining process allow for participants to an agreement to have a period of 14 days to consider the content of the agreement before the ballot is taken for approval.
Accommodation should also be made so that, in the instances of transfer of business, automaticity exists for the recognition of previous service and no additional minimum period of service needs to be provided for before access to unfair dismissal provisions applies.
In regard to the unfair contracts regime, the inquiry members should recommend that a review of the application and operation of unfair contracts occurs to ensure that the provision is recognised as an industrial responsibility and not a commercial responsibility.

In the area of unfair dismissal, the inquiry members should recommend that the probationary period is no more than three months, with the capacity to waive any period of probation.
Further, the inquiry members should recommend that the period to file an application alleging unfair dismissal should be 21 days, with the capacity for extension of that timeframe if necessary.
The inquiry members should in areas relating to right of entry provide that the bill be amended to allow a permit holder the capacity to discuss matters relating to the Fair Work Bill with the employer, a member employee or an employee who is eligible to become a member of the officer’s organisation during working or non-working time and that the requirement to give 24 hours notice be removed.

The QCU refers you to our substantial submission for a full list of all the matters canvassed.
However, for the purpose of this morning’s introduction we note these matters in particular.

It is the QCU’s position that Work Choices should be laid clearly to rest and that the adoption of the Fair Work Bill should be the outcome of this inquiry.

Clearly the coalition has no alternative than to pass the bill.
Further, the QCU urges this committee to guarantee through its recommendations that Queensland workers who have by force as a result of the introduction of Work Choices or through subsequent transfer arrangements agreed to by the states suffer EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 31 no diminution in their industrial relations arrangements in contrast to what exists within Queensland legislative environment.
CHAIR—Ms Bignell, do you want to make your presentation now?

Ms Bignell—Thank you.

Whilst the legislation in many parts is an obvious improvement on Work Choices, we are very concerned about a number of matters, in our submission and in the QCU submission, which we say illustrates that the premise of the legislation should be that workers are better off, not worse off, under this proposed act.

A couple of issues that I would like to deal with are, first, arbitration.
Arbitration is in our view the epitome of the Australian value that we all aspire to, and that is a fair go.

It is a feature of our country for a hundred years and it was a unique feature that was very much the envy of other countries because it preserved employment relationships, not destroyed them.

The value of an independent umpire is that disputes can be settled and both workers and employers can move on without a loss of face having had their views heard and considered.
For workers to be better off, they need to have a system that provides natural justice, and that is what arbitration does.

We say that in the current economic environment this legislation should above all preserve jobs.

Frankly, we believe that without access to immediate and binding arbitration for workplace disputes employees will be forced either to endure unfair treatment or to leave their job.

This will affect more women than men, in our view, because of the segmentation of the labour market.
The clerical occupation, for example, employs between 70 and 80 per cent of women and many of them, particularly in Queensland, are employed in small to medium sized businesses, many still under the state jurisdiction, a jurisdiction which is contemplated to be moved into the federal jurisdiction.
Because union density is low in that sector, they are at a distinct disadvantage and are most unlikely to be able to gain agreement from their employer for arbitration within an employment agreement at their workplace.

It is likely that they will not even know that they have to do that until it is too late and it is likely that these primarily low-paid workers will be forced to pay for legal representation, something they are most unlikely to be able to afford.
The current bill’s provisions do not create an environment where differences can be settled and the parties get back to work quickly.

Instead, they create a legalistic framework where workers will have to pay lawyers to represent them in court, probably many months after the dispute arose, and the focus of the litigation will not be on preserving the employment relationship but will be on assigning blame and ordering penalties against one of the parties.
We say this is not in the spirit of a fair go and we say that justice needs to be accessible to everyone and in order to work, not just those who can afford a lawyer.

Award modernisation likewise was promised to be an improvement on the current system.

However, restrictions on allowing state differentials have meant that there are indeed workers that are worse off because they are losing conditions that they currently entitled to.
I refer specifically to the occupational clerks private sector award, which represents a significant and serious departure from the government’s promises to those workers.

This award is not in fact a true occupational award, because it only applies at the moment where an industry award does not.
Most of those industry awards will be blue-collar ones, primarily covering male workers, and clerical work in our view will not be valued and in fact has not been valued correctly in those drafts that we have seen coming out of the AIRC.

History shows that will be the case.


That is because the proportion of clerical workers in those industries will be very small compared to the rest of the workforce and those clerical workers will find it extremely difficult to gain sufficient support for the value of their work to be recognised fairly.

The finalised award introduces an exemption rate at the level of $44,250 per annum, which equates to $22.40 per hour.
These are not high-income workers and it is a direct contravention of the government’s promise, made numerous times, that awards will apply to workers earning up to $100,000 per annum.
It means that those workers earning over $44,250 will lose their rights to: overtime, shift penalties and part-time work arrangements; access to a dispute resolution procedure; minimum engagement periods; redundancy provisions above the national employment standards; hours of work clauses, including weekend penalty rates; all allowances, including accident and make up pay; and, incredibly, rest breaks and meal breaks.

We say that that is a significant oversight that needs to be corrected.
The award also reduces rights in Queensland with respect to Saturday work, which can now be included as ordinary time as part of a normal working week.

That means that significant numbers of workers will be forced into working Saturdays for no extra pay in the future, which will have a severe impact on their family lives.

Those who are currently engaged casually on Saturdays may well lose their jobs because there is now a cheaper option.
Based on the current rates, a trainee will lose $23.10 for working all day Saturday.

That is EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 32 Senate Tuesday, 27 January 2009 $1,108 per annum.

A base grade clerical or administrative worker will lose $25.17 per day or around $1,300 per annum.

That is based on the clerks private sector award, which has been posted by the AIRC.

The last two things that I will briefly mention are time periods and unfair dismissals.
Time periods are important in terms of the lodgement of agreements.

In the past, under the AIRC they worked well.

They were done within the minimum amount of time required and with an error rate of almost nil.

The proposed system means that workers will be unaware of the status of their employment arrangements for some time and will rely upon the employer to do the right thing.
Our union has recently seen examples of employers who failed to lodge ITEAs at all or did so knowing that they will fail the no disadvantage test but will not be rejected for many months, enabling them to exploit their staff in the meantime.

This process needs to be fixed to avoid further exploitation of those workers, particularly given the difficult economic times that we are faced with and the severe restrictions on dispute settlement in the proposed legislation.
With respect to unfair dismissals, we say that a seven-day time period for lodgement is completely unrealistic.

This will see many workers, particularly regional or remote workers, disadvantaged and potentially barred from accessing any sort of justice at all.

Any case will require careful consideration and a level of evidence that is simply not possible to achieve within seven days.
We say that the 21-day time period should remain for this reason, and because it also employers and workers some time to reconcile those differences before the legal process must begin and costs are therefore incurred by both parties.

Thank you.

Mr Hodge—The concerns of the LHMU Queensland branch are in relation to the extension of the probationary periods, which are being increased from three months to 12 months for employers with 15 or less employees or six months for those with more than 15 employees.
The experience of the Member Assist section, which dealt 204 dismissals in the last 12-month period, 2008, was that there were a number of unfair dismissals that were brought to our attention by our members which we could not take any action on purely because the member had been dismissed during the three-month probationary period.
The reasons that the members were giving us for those dismissals—on our investigation, anyway—came across as being reasonable grounds for us to have lodged a dispute had the member not been on probation.

The reasons for dismissal were truly unfair.

The other area of concern that we have is having seven days for lodgement of a dispute.

Member Assist have to deal with these cases.


Of the 204 that we had last year, only 30 of those had to be lodged as a dispute because the Member Assist organisers were able to investigate the circumstances behind the dismissal, negotiate with the employer and in certain circumstances get a dismissal reversed.

There was an agreement between the employer, the union and the member to have them reinstated.
On other occasions it was found through our investigation that the member was in fact fairly dismissed; there were legitimate grounds for the dismissal.

This is a time-consuming process of having to gather all of the facts so as to be able to determine whether the dismissal was in fact unfair or not.

With the seven-day period, we would have to look at lodging a dispute on behalf of the member in every instance that the member claimed to have been unfairly dismissed and then try to gather the facts.
This would be very time consuming and difficult for both the union and the employer with the amount of man hours that they would have to put aside to attend meetings with the relevant authorities for those hearings to be held.

Senator ABETZ—Thank you for your written and verbal submissions.

Ms Ralston, thank you very much for the helpful suggestion, if I understood you correctly, that the coalition has no option but to pass the bill!

It begs the question: should we then be seeking to amend it?
Ms Ralston—Amend it post its being passed or amend it before?

Senator ABETZ—No.

You are saying that we have no option but to pass the bill.

Ms Ralston—That is right.

Senator ABETZ—You come before us wanting to amend the bill.

I am asking you: if you say we have no option but to pass the bill, how does that fit in with your requests, undoubtedly seeking the support of this committee, for some amendments?

Ms Ralston—I do not think there is an inconsistency at all.
The reality is that the Fair Work Bill goes a substantial way to correcting the anomalies that are evident within Work Choices.

Our submission is that if there is be support from the states for transfer arrangements into the federal jurisdiction then you need to be able to factor in components from the states’ legislation where there is a noticeable diminution.

So our submission is that there should be amendments made to the Fair Work Bill.
We have highlighted some of those EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 33 amendments.

The ACTU have highlighted a range of suggested amendments also.

That is the proposition: pass the bill but look towards those areas to make the bill more robust.

Senator ABETZ—So you want us to pass the bill but with amendments that you are advocating.

I can understand that.


One of the issues that we and other senators face is that the government claims it has a mandate for its legislation and, in general terms, I think that is a proposition that has to be accepted.

But what do you then when the government, prior to the election, makes a firm promise?

For example, right of entry rules will not be changed, full stop—that was part of its election mandate.
Also, with the unfair dismissals there were to be seven days and, without indicating anything, I must say that I think there is some merit in what Mr Hodge said about that seven days.

But that was the firm promise of the Labor Party before the last election.

Should we be helping the government to stick by its election promise or should we be voting in the Senate to in fact undo some of the Labor Party’s election promises?
Ms Ralston—I think there is a component in the ALP policy that talks about the transitional arrangements for transfer into the federal jurisdiction which makes firm and strong commitments about there being protections set out for those transferred employees.

All we are doing is identifying those areas where there would need to be some correction made to ensure that that policy initiative is met.

Senator ABETZ—So, potentially, some contradictory promises were made.
Ms Bignell, in your submission—and I think that follows on—there are certain things in awards covering your members that might be diluted under Fair Work Australia.

Is that what your submission was suggesting?

Ms Bignell—They have been already under the awards which have been worked on and issued by the AIRC, which will come into effect in January 2010.

Senator ABETZ—So how would you suggest that that should be fixed, because clearly some workers will be worse off if that continues?
Ms Bignell—Our view in terms of award modernisation is that those issues can be dealt with quite easily by the relevant minister making a further direction to the AIRC with respect to the application of those principles for production of those modernised awards.

Senator ABETZ—Ms Gillard made a promise after the election that no worker would be worse off under Fair Work Australia.

You have given us an clear example of where workers will be worse off unless there is a further intervention.
But of course Ms Gillard also said that employers would not be worse off.

So there will be some interesting discussions had, no doubt, about that area.

I thank you, Ms Bignell, for that.

Can I move on to right of entry.

Possibly Ms Ralston might want to answer the question.
I do not know if you were in the room this morning when AMMA and the Chamber of Commerce of Queensland gave evidence, but there is the suggestion—and it has been in the media as well—that not only is the proposal of the right of entry contrary to what Julia Gillard promised before the election but the regime that is being proposed would allow those that are so authorised to check any records whatsoever of employees whether they are union members or not.
I just want to understand whether that is your reading of the legislation as well.

If it is not, could you explain to me why your interpretation is different.

Ms Ralston—That is my reading of the legislation.

Senator ABETZ—Right.


So you would agree that the official can therefore access the worker’s—union member or non-union member—job application, the referees at the end of that job application, police records, medical records, or a complaint that the employee may have made about a fellow employee to management.

Would all of that be accessible to the official?

Ms Ralston—I do not know to what extent the breadth of that material would be held by the employer.
Senator ABETZ—Surely an employer would have the job application on file.

I would have thought that would be a bit of a no-brainer.

If a police record— Ms Ralston—Yes, but you have given a comprehensive list as a general test of what would be available.

The access of employee records is for the purposes of investigating a suspected breach.

In investigating a suspected breach, if there is material that is required to undertake that investigation then there should be access to that material.
Obviously the authorised officer, who is subject to a fit and proper person test—a test which does not exist in Queensland but which has been proposed in the federal jurisdiction—would be obliged to be aware of their limitations in relation to accessing that material under privacy laws.
Senator ABETZ—But in the legislation, as I read it, and as I think you and the employers are reading it, there are no limitations on what can be accessed because the definition just says ‘record’ and it does not limit EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 34 Senate Tuesday, 27 January 2009 it.

Therefore, the employee’s record can include all those things that I have just referred to.
I accept that not every employee has to provide a police check to their employers, but people in, say, the childcare sector do need to, so I am covering the field.

You will accept that that information could be accessed by the officer?

Ms Ralston—For the purposes of investigating a suspected breach.

The access is not for the purpose of randomly canvassing issues for no purpose at all.

There is a connection.


Senator ABETZ—Under the legislative regime all that you would need is a suspected breach and 24 hours notice.

You would go in and access the employee’s file.

The employer needs to make available, as I understand it, the employee’s records.

Those records would include medical history, police check, the referees at the end of the job application, et cetera.

Would you be able to live with limitations being placed on the accessing of records?
That is, access being limited just to the specific issues.

For example, if the allegation is only underpayment that it only be the wages record that is made available as opposed to all the other matters that I have just referred to?

Would you like to take that on notice?

Ms Ralston—Yes, I would like to consider it.

But I think that the committee needs to be very conscious of the fact that the connection here is to a suspected breach.
That is the connection; it is not some random exercise of canvassing whatever material the employer may hold.

There is a connection.

Senator ABETZ—But if the allegation is, say, an unfair dismissal potentially, then medical records, possibly a police record and other things might all be considered.
Once somebody is given access to the complete file, with respect, what is there to protect the employee from that person just going through everything that is on the file as opposed to just that which is directly relevant to the matter at hand?

Ms Ralston—The other aspect that you need to bear in mind is that there are limitations placed upon the authorised officer with regard to privacy laws.

So the capacity to take that information and use it in any external form is substantially limited.
You are suggesting that in some way the accessing of that material is designed to be filtered outside of the workplace issue.

Senator ABETZ—No, the right to access is on the basis of an alleged breach.

Are we agreed on that?

Ms Ralston—Yes.

Senator ABETZ—Once you get access there is nothing in the legislation that puts a limitation or a fetter on the degree of access and to what documents you are entitled access.

That is also the case, isn’t it?


Ms Ralston—I do not see that as an impediment if the issue is the investigation of the suspected breach, but I am prepared to take on notice the question that you have specifically raised.

Senator ABETZ—Thank you very much for that.

That saves us canvassing further on that.


Mr Hodge, you referred to the seven days, and the QCU’s submission, paragraph 214, recommends that the period for unfair dismissal should be 21 days with a capacity to extend that time frame if necessary.
Without indicating any particular view on this, can I ask you whether you think it would make sense that if, for example, reinstatement was being sought then the filing be within seven days and that if another remedy is being sought then possibly 14 days or 21 days, as I think you are suggesting, might be the more appropriate course of action.
Once again if you want to take that on notice, Mr Hodge, this is not designed to trip people up; it is designed to get information out and get considered views on some of these vexed questions.

Without belabouring the point, in Forward with Fairness, the April 2007 document, it does tell us that under Labor a claim for unfair dismissal must be made usually within seven days of the dismissal.
So one of the things we have to consider is that that was a promise made to the Australian people and should we then keep the government up to its promise or should we be giving consideration to, if I might say so, saving the government from itself in relation to the promise it made.

In considering that I would be very interested in your view, Mr Hodge, if you feel you can speak on behalf of the QCU and if not you then Mr Monaghan or Ms Ralston.

I would be appreciative of that.


Similarly, in paragraph 135 of the union submission the suggestion is to have a period of 14 days to consider the content of the agreement before the ballot is taken for approval.

The suggestion in the legislation is seven days.

Is that right?

Ms Ralston—Yes.

Senator ABETZ—Can you tell me, from a union point of view, about some of the logistical difficulties you might have?
I can imagine the employer involved would know every chapter, verse, full stop and comma and you as a union official also know the full detail, chapter, comma, full stop, et cetera.

But selling it to your membership might take more than seven days after it is finally agreed.

What are some of the practical difficulties that you might experience?
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 35 Mr Hodge—Some of the difficulties can be just in contacting the employer—finding the relevant person from the organisation or company who has the right to say yea or nay to that person’s reinstatement.

That can be quite a difficult process.

Some employers can be rather evasive in taking a call from the union.

Senator ABETZ—Sorry, I have moved on from unfair dismissals.
I am now referring to paragraph 135 and that is the bargaining process—good faith bargaining.

That is to allow for participants to an agreement to have a period of 14 days to consider the content of the agreement before the ballot is taken for approval.

I think the legislation is suggesting seven days.

Ms Ralston—Yes.

Senator ABETZ—You are saying seven days is too short and that 14 days would be better.
On the face of it, it makes sense to me but I would be interested to know from the union perspective why the seven days is far too short.

Ms Ralston—The reason Mr Hodge started to answer the question that way is that you did make reference to point 214.

It is probably relevant to identify at this stage that both those points, 214 and 135, were matters that were subject to a holistic review of Queensland’s legislation and the subsequent adoption of the Industrial Relations Act.
Both of those points were matters that our task force dealt with substantially in their report.

To a large extent the reasoning attached to both probably has some similarities.

I think Mr Hodge was alluding to the fact that there are issues about the geography within the state and the capacity to be able to access and devolve information effectively within very tight time frames.
In relation to the issue of the agreement, the capacity for employees to get access to the agreement and for there to be some exchange of information in relation to its content and for some assessment as to its application within the workplace so that those workers are in a more informed position to vote upon that collective agreement requires a longer duration of time than seven days.

That was the outcome of our inquiry in Queensland in 1998 into 1999.
Senator ABETZ—Would 10 days be more suitable or do you think 14 is the absolute minimum?

Ms Ralston—Our proposition is 14 days.

The reason we have advocated that is because we have the benefit of some years of practical application of the 14-day time frame and we think that is a more relevant duration of time, in much the same way as we believe that 21 days is a more relevant time frame in relation to the unfair dismissal area.
Mr Monaghan—This area has to take into account a lot more working arrangements.

If you were on shift work, say a four-days-on arrangement, then if you are on your four days off when this agreement comes down you have only got three days by the time you get to the workplace to look at the agreement.

So there are reasons why that 14-day period would better fit into the overall workforce.

Not everybody works nine to five, Monday to Friday day shift.
People work a range of arrangements from part-time to shift work to sometimes very complicated patterns on a part-time basis.

That is one of the reasons.

Senator ABETZ—Time is very short; I invite you to amplify that answer in your written response to the committee on the other matters you have taken on notice.

That would be helpful.


Backtracking to right of entry, I understand that in the Queensland legislation an employee can opt out or basically say that they do not want their record subjected to inspection by the official.

Is that correct?

Ms Ralston—We need to look at the Queensland legislation holistically.

The Queensland legislation does not provide for a fit and proper person test.
The Queensland legislation does not limit access rights by indicating the venue that you would need to attend or the route you would need to travel.

The Queensland legislation does not provide for 24 hours notice to access a work site.

The Queensland legislation does not limit the right to hold discussions within employees during working time.

Those are all features that are dissimilar to what exists in the Fair Work Bill.
The issue of being able to exempt was a provision left over from the 1997 legislation that was introduced by the relevant minister, who was Senator Santo Santoro.

We need to see it in the complete context— Senator ABETZ—I personally think exemption is very good.

Ms Ralston—and those other four aspects are particularly important when you contrast it with the Fair Work Bill.
Senator ABETZ—Right, but I am asking specifically about whether or not the Queensland legislation has an exemption clause or an opt out clause.

I think you are saying that it does.

Ms Ralston—It does, but the alternative is that you can access a work site without 24 hours notice to hold discussions with workers during working time around issues relating to the legislation.
So it gives you EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 36 Senate Tuesday, 27 January 2009 capacity to be able to get onsite to deal with those issues that are important to workers.

What you are attempting to do is isolate one particular aspect without looking at the holistic components of the right of entry provisions under the Queensland legislation.

Senator ABETZ—What I am doing I will determine for myself— Ms Ralston—I am assisting you as best I can.
Senator ABETZ—And you are very kind and I appreciate that.

CHAIR—We are going to have to leave it there.

Senator CROSSIN—Ms Ralston, I take you back to access to records, and the example that was talked about with Senator Abetz, accessing records for the purposes of investigating an unfair dismissal.
To your knowledge has it ever occurred that a trade union official has sought to access records of someone who has been unfairly dismissed without that person giving the trade union official the authority to do that?

Ms Ralston—Not as far as I am aware.

When you think about the context in which an unfair dismissal matter is pursued, it is an employee who seeks assistance from their union to review the alleged unfairness of a dismissal.
In requesting that review they would lay open the material that is required of the union to investigate that unfairness.

Senator CROSSIN—In fact, in your knowledge has there been a misuse of records obtained by trade union officials in your time with the Queensland unions?

Ms Ralston—No, and what is important to bear in mind, as I indicated earlier, is that in the Queensland context authorised officers are not subject to a fit and proper person test.
Yet the authorised officers that operate within the Queensland environment indirectly apply such a test because they adhere to very high standards in relation to the rights and responsibilities they have in accessing a work site.

Senator CROSSIN—So you are not aware of any allegation or case or proceedings or complaints whereby a person has misused employee information?

Ms Ralston—No.

Senator CROSSIN—Okay.


With regard to the protections under Work Choices for personal information obtained, as opposed to the protections under the Fair Work Bill, my understanding is that they are stronger and more comprehensive than in the current act.

Is that your understanding?

Ms Ralston—Yes, that is my reading of the bill.


Senator CROSSIN—In fact, as well as a system of having to obtain a permit and pass the fit and proper person test, there are now heavier penalties for unauthorised use or disclosure of those employee records.

Is that your understanding?

Ms Ralston—Yes, and that is both for an individual and for an organisation.

Senator CROSSIN—That is not a penalty that is currently in the Queensland legislation?

Ms Ralston—No.
Ms Ralston—No.

Senator CROSSIN—So, in fact, we could conclude that the Fair Work Bill is actually tougher and stricter and implies more penalties in terms of accessing employee records than Work Choices.

Ms Ralston—Yes, that would be my assessment too.

Senator SIEWERT—This morning we heard from the Queensland CCI about their concerns that this will require employers to bargain.

Can you tell us why you think employers should be forced to bargain?

Or what is wrong with being forced to bargain?


Mr Monaghan—Can I answer it in this way.

If the proposition is that every employer can just say no and the legislation says that unions or employee representatives must go, then I think that from the employers’ point of interest everybody would say no to bargaining.

There is a legitimate role in this society for people to seek to enhance their wages and conditions or to have them maintained.
That must be balanced with employers’ rights, but I do not think it would be good to have a regime that just says one party can say no and that we all go back to what we were doing previously.

Senator SIEWERT—The other point you have not touched on much, although certainly you give a good rundown on it in your submission, is the issue around this bill overriding Queensland’s bill in terms of training.
You have made some recommendations, but could you quickly point out what would be the effect of this bill if amendments are not made that would be detrimental to training in Queensland?

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 37 Ms Ralston—The way we have couched it in the submission is to indicate that there is a degree of confusion over the rewording of the provision as it appears in the Fair Work Bill in contrast to the way it appeared under Work Choices.
So the way we have developed our recommendation is to indicate that there should be a reversion to the initial wording but that there needs to be a more holistic review of the issue of exempting training from the operation of the Fair Work Bill.

What we have done in our submission is to highlight the difference between industrial and administrative arrangements, because this is the area where the confusion arises.
It appears that in relation to industrial arrangements the Fair Work Bill will have pre- eminence and in relation to administrative arrangements the state vocational education and training legislation will continue to apply, but there is confusion over what constitutes industrial or administrative arrangements.

As long as there is confusion you place at risk the good work that has been done around training.
In Queensland in particular we have been at the forefront of developing traineeships and we are a growth state in that area, so we certainly would not want to see any adverse impact indirectly occurring as a result of the reworking of that particular exemption.

Senator CAMERON—I am not sure what the answer is to this but there have been some concerns about right of entry raised by every employer or employer association who has appeared here this morning.
Could you give us some examples of the problems that workers have had in not being able to access union representation under the previous Work Choices legislation and why the new legislation is a better proposition for workers’ rights?

Ms Ralston—Certainly there have been substantial limitations in accessing work sites.

The ACTU submission has highlighted some of the difficulties that have been experienced.
In Queensland we have also found that the limitations that have been placed on the type of facility provided has meant that a union has been limited substantially in being able to provide its service to its respective members.

The most public example we have had was where the Australian Manufacturing Workers Union was expected to hold discussions with their respective members in a car park.
There have also been examples where the type of facility that has been provided has been less than amenable to holding discussions with members about issues that concern them.

So there are examples coming out of Queensland and they have been hugely problematic.

The shift in the Fair Work Bill to removing those limitations is an improvement.

Senator CAMERON—Have there been any specific problems for access in remote construction or mining operations?
Ms Ralston—I do not think that we are in a position to identify the particulars, but I can take that on notice as well and provide that to you.

Senator FURNER—Mr Hodge, you inferred in your oral submission that should the seven-day notice period not be relaxed or amended it would create a scenario where every notice that came through your call centre would have to be identified as an unfair dismissal and therefore treated by that method, leading to an application for such.
What sort of burden would that create on the system in your view and experience?

Mr Hodge—It would create a lot more work for the union itself, for our industrial officers to try and prepare the case.

It would also put a lot more pressure on the relevant authority that was going to have to hear it.
Also—as I referred to before—there is the fact that the employer groups themselves would be required to attend those hearings, whereas that matter could possibly be settled with a longer time frame to be able to talk with the employer and to investigate the actual facts surrounding the dismissal to determine whether it was, in fact, an unfair dismissal or a warranted dismissal and whether we were able to negotiate settlement directly with the employer in getting that member back to work.
Senator FURNER—I think you identified 30-odd cases where you were able to circumvent the need for an application based on the ability to examine the fact prior to the expiration of the 21-day period?

Mr Hodge—In the 12 months of 2008, out of 204 unfair dismissal cases that were presented to the member assist of the LHMWU only 30 were actually lodged as disputes.

We were able to resolve the rest within the member assist section of the LHMWU.
We were able either to ascertain that the dismissal was warranted or to discuss it with the employer, get a resolution to the problem and have the member reinstated.

There were only 30 out of the 204 that ended up actually being lodged.

Senator FURNER—Pre Work Choices in March 2007—you might need to take this on notice—how many workers may have been covered under the state jurisdiction as opposed to the federal?
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 38 Senate Tuesday, 27 January 2009 Ms Ralston—We do outline some statistics in our submission, but it is likely that with the sweep of Work Choices that approximately 20 per cent of Queensland workers were moved by force into the federal jurisdiction.

That would be approximately 400,000 to 500,000 Queensland workers.

CHAIR—Thank you for your presentation to the committee today.
Proceedings suspended from 12.29 pm to 1.21 pm EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 39 ROGERS, Ms Patricia Carol, Industrial Officer, Communications, Electrical and Plumbing Union INGLIS, Ms Kerry, Industrial Officer, Electrical Trades Union, Queensland SIMPSON, Mr Peter John, Assistant Secretary, Electrical Trades Union, Queensland CHAIR—I invite you to make some opening remarks to the committee to be followed by questions.
Mr Simpson—I understand that we have been allotted 45 minutes for today’s submission.

Given the short notice we have had to compile our submission, I do not think that we are going to take the full 45 minute allotment so I hope it does not cause too much grief.

Firstly, let me explain our union.

The Electrical Trades Union, Queensland is a transitionally registered association pursuant to the Workplace Relations Act 1996.
Our union has over 11,000 members employed or in connection with the electricity industry in Queensland.

The ETUQ was first registered in the state of Queensland in 1915 and has a proud history of representing electrical workers from that time until the present.
The ETUQ has secured wages and working conditions of a high-level for our membership through enterprise and industry bargaining, income protection, portable redundancy schemes for employees of electrical contractors, industry superannuation, occupational health and safety and industry training.

The ETU was an example of occupational health and safety and ETUQ was heavily involved in the campaign for and subsequent development of the Electrical Safety Act 2002 and regulations.
We are also heavily involved in a number of other workplace health and safety committees peculiar to the electricity industry.

In respect of the proposed Fair Work Australia bill, it is important this committee is aware of the effects its implementation will have on our membership.

By way of example, it is important to understand the demographics of our membership both pre the Work Choices amendments to the Workplace Relations Act and now with the proposed Fair Work Australia bill.
Prior to 26 March 2006 the majority of our members— approximately 90 per cent—of the ETUQ were employed pursuant to awards and agreements of the Queensland Industrial Relations Commission so that 90 per cent of our membership was under the Queensland state act.

Post-Work Choices, we now have a situation where 95 per cent of our membership is now under the federal system by no wish of their own.
The ETUQ strenuously objected to the Howard government’s use of the corporations power to compulsorily transfer workers into the federal industrial relations system.

The ETUQ continues to object to forced federalisation which has necessitated the ETUQ obtaining transitional registration pursuant to the act and left those members who are state and government employees with a handful of members employed by other unincorporated entities with the Queensland state industrial relations system.
So only about five per cent of our membership still resides in the state, which is unfortunate.

The ETUQ is aware of the High Court decision that upheld the constitutional validity of Work Choices and we acknowledge that as a result of that decision employees of constituted corporations and incorporated entities are automatically covered by the federal industrial relations system.

However, we strongly believe that state unions should have a role and state jurisdictions should remain.
It is our strong belief that that should occur.

The March 2006 amendments to the Workplace Relations Act resulted in the loss of industrial rights and conditions of a large proportion of our membership in Queensland.
Our members were covered by the QIRC certified agreement’s lost comprehensive grievance and disputes handling procedures; access to simple and effective wages recovery processes; and user-friendly bargaining provisions that included a range of agreements, including project agreements and multiemployer agreements, unrestricted content in certified agreements, scrutiny of certified agreements by the QIRC against the no disadvantage test, and conciliation and arbitration of the QIRC for unfair and unlawful dismissal matters with few jurisdictional barriers.
The ETU-Q and its members campaigned hard against the excesses of Work Choices and sought a return to more of a fair, balanced system of industrial relations and genuinely afforded the industrial parties the opportunity to reach agreements that were suitable to their particular workplaces and avenues of assistance in instances where disputation existed.

The federal ALP promised to tear up the Work Choices legislation and bring back into balance a fair industrial relations system.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 40 Senate Tuesday, 27 January 2009 Whilst there are some positives in the proposed Fair Work Australia Bill, the ETU-Q strongly contends that there should have been further examination of the bill by the government before tabling a revised version in the Senate.

I will pass over to Kerry Inglis to run through the details of our submission on the proposed bill.

Ms Inglis—The Fair Work Bill provides a number of significant improvements over Work Choices.
In terms of the union’s ability to represent the interests of its members, the bill provides automatic recognition of a union as the bargaining representative of its members at each workplace except where a member specifically opts out, the ability of the union as a bargaining representative to obtain an order from Fair Work Australia to force an employer to bargain in good faith, fewer restrictions on the types of matters that can be included in agreements, and the union official’s right of entry to a site based on the ability of that union to represent those employees rather than based on the union being bound by an award or agreement operating at the workplace.
The abolition of the Australian pay classification scales allowing for modern awards to contain classification structures and wage rates is welcomed.

The pay classification scales were difficult to understand.

They were used to strip awards of classification structures in career paths and further fragmented the sources to which employees and employers had to turn to obtain information on conditions of employment.

The ETU-Q commends the abolition of employer greenfield agreements.
The ETU-Q commends the change to union employer greenfield agreements that requires an employer to give 14 days notice to all relevant unions prior to an agreement being made.

This will help to ensure that unions that represent employees who will be employed on the worksite have an opportunity to be party to the workplace agreement and avoid exclusive arrangements that would run the risk of leaving part of the workforce unrepresented.
The ETU-Q is aware of debate regarding whether the bill addresses all of the issues raised by the International Labour Organisation in respect of deficiencies in Work Choices.

This submission does not provide an analysis of whether the bill, if passed, would meet Australia’s obligations under international labour agreements.

However, the ETU would not under any circumstances support any legislative provisions that breached Australia’s obligations under international agreements.
I would like to turn to the issue of bargaining and protected industrial action.
With regard to the Queensland legislation, under which, as Mr Simpson previously indicated, the majority of our members were regulated until 2006, the intention to commence bargaining was notified in writing and a peace period applied and then, provided the nominal expiry date of any previous agreement had passed, industrial action could be taken with three working days’ notice, a working day being defined as a day on which employees ordinarily perform work.
Work Choices introduced a complex scheme for bargaining that was heavily weighted in favour of employers, particularly large employers.

Work Choices introduced the requirement for a protected action ballot to be conducted prior to employees taking protected industrial action in support of their bargaining claims.
The protected action ballot process places unfair and unreasonable barriers in the way of union members exercising their legitimate right to use industrial action to advance their pursuit of a workplace agreement.

The Australian Electoral Commission’s minimum timetable for a postal ballot, which is the default position in the act, is around 18 days, and this is based on Australia Post’s published delivery times of next business day within metropolitan areas and the second business day in other areas.
In many cases, this is not sufficient and if it is relied on it disenfranchises those employees, assuming that the postal ballot timetable to be implemented is based on those estimates.

As an alternative, to avoid members in outlying areas potentially being disenfranchised, the area has a longer turnaround, which, once again, obviously delays the taking of protected industrial action.

The protected action ballot process has been manipulated by employers to frustrate and delay bargaining.
Employers defend protected action ballot applications with lawyers and barristers who come armed with technical legal arguments aimed at delaying the issuing of an order.

If an order is issued and is subsequently appealed, the potential for delay is significantly greater.

I refer in particular to Bilfinger Berger Services (Australia) Pty Ltd and the CEPU—print number PR982447—of 2008.

Sorry, I only have one of the print numbers.

There is an additional one.


Protected action ballots are costly to run: legal costs on the part of employers, more often than not; taxpayer and union costs to fund the ballot; and Australian Industrial Relations Commission time spent perusing the usually quite substantial documentation and then hearing and determining the application.
They are pointless, as they do no more than a simple union ballot process was able to achieve previously, and they stand in the way of employees taking lawful industrial action in support of their claim.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 41 Our union has been involved in protected action ballot applications where employers have sought to obstruct the protected action ballot process.
In a matter just before Christmas, on 18 December 2008, a matter involving a company by the name of Skilltech Consulting, the employer opposed the union’s application, alleging that we had not been genuinely trying to reach agreement.

The basis for their argument was that they said a sentence in one clause of the agreement was prohibited content.

This was not raised with the union until the hearing, and the union at that time offered to remove the clause.
The commission found against the union and the application was not successful.

The background to this matter was that the union had initiated a bargaining period some months earlier, had written to the employer and sought their input as to what they wanted in the agreement.

The employer did not respond to that offer.

An organiser of the union contacted them on numerous occasions and, apart from one initial meeting, was unable to get them to return calls or provide feedback.
Because there is no obligation on the employer under current legislation, the employer was able to ignore the union’s many requests to meet and confer and then allege that the union was not genuinely trying to reach agreement.

Incidentally, another agreement with the same clause had, around the same time, been approved by the Workplace Authority.

The union, following that hearing, immediately removed the clause from the proposed agreement and then, in January, filed a new application.
We then discovered that, due to a faxing error, the requirement for service on the employer within 24 hours was 25 minutes out of time.

As a result, the union withdrew the application and filed again some days later.

On this occasion, the employer did not oppose the application.
The effect of this sequence of events was that the employer was able to achieve almost a month’s delay in our members at Skilltech being able to exercise their legitimate right to take protected industrial action in support of their bargaining claims.
The explanatory memorandum to the bill which introduced what we refer to as the Work Choices legislation deals with the objectives of the protected action ballot provisions at item 1393: The provisions are designed to be facilitative (ie to provide the means for accessing protected action) not prohibitive (ie to outline the circumstances in which such action is not available).

In our experience, often the process is anything but facilitative.
It is cumbersome, time consuming, fraught with technicalities and costly.

In our experience, employers will, for the most part, engage a lawyer and often a barrister to represent them in a protected action ballot hearing.

In three separate protected action ballots for electricity authorities in Queensland last year, the employers were legally represented in matters that were not even opposed by the employers.
Such is the perception in the industrial relations community about the complexity and technical nature of these matters that those sorts of representation issues arise on a regular basis.

Under the Queensland industrial legislation, there is no prohibition on pattern bargaining.

The ETU Queensland has been able to develop claims across an industry.
Employers in some industries are happy with the pattern approach to bargaining, as it ensures consistency in wages and conditions and militates against a responsible employer who provides fair pay and conditions being undercut by one who gets a competitive edge at the expense of their employees’ conditions.

Work Choices made pattern bargaining unlawful.


The bill retains the definition of pattern bargaining used in Work Choices which is very broad, and a person may actually apply for an injunction to restrain a bargaining representative from pattern bargaining.

When a bargaining representative is engaging in pattern bargaining the protected status of employee claim action is removed.
Furthermore, a person accused of pattern bargaining bears the onus of proving that they are genuinely trying to reach agreement with the employer.

The ETU Queensland submits that the prohibitions on pattern bargaining in the bill should be removed and it should be a matter for the industrial parties to determine whether bargaining is conducted on an industry basis.
And in relation to our comments on protected action ballot orders, whilst we note that the bill makes some changes in respect of obtaining a protected action ballot order, for the most part the Work Choices provisions are retained and our submission is there should be no requirement for a protected action ballot when union members are deciding whether to take protected industrial action in support of their bargaining claims.
In the current legislation and also in the dictionary in section 12 of the bill, a working day is defined as ‘a day that is not a Saturday, a Sunday or a public holiday’.

Many members of the ETU Queensland work in occupations or industries where they are rostered seven days a week.

The definition in the bill was a Work Choices definition which we say is artificial and not relevant to those employees and their workplaces.
Working day should be defined to take account of actual working days at a particular workplace.

We say the EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 42 Senate Tuesday, 27 January 2009 definition of a working day in the bill should be amended to ‘a day on which employees normally perform work’.

That way when a union gives three days notice of protected industrial action as a point of enterprise bargaining claims, it is actually three proper working days not three weekdays.
I would like to make some brief comments on section 418 of the bill which deals with orders stopping industrial action et cetera.

In previous legislation if the commission made a finding that industrial action was happening, threatened, impending or probable or being organised it had a discretion to make an order or not.

This discretion was used in circumstances where, for example, there had been a history of disputation about a serious safety concern but which stopped short of imminent risk.
The commission would often conciliate around the actual issue in dispute rather than simply making an order.

That discretion was removed by Work Choices and the ETU is of the view that it should be included in the bill.

Merely stopping the industrial action does not make the problem go away and we submit that the Australian Industrial Relations Commission and no doubt Fair Work Australia will be well-placed to assist in such circumstances.
Related to that, prior to Work Choices there was also a section 166 of the act which from the time that an order was made gave the commission three days in which to deal with the matter before an employer could take civil action.

We say that that is also a provision which is effective as it calls into play the conciliation skills of the commission and often brings about effective and speedy results.

CHAIR—We are wondering if you are about to wind up because we will have some questions for you.
Ms Inglis—Okay.

Should I take the section on agreements and termination as read?

CHAIR—Yes, if it is actually a part of your submission you can consider the whole thing as read.

You do not need to read it out to us.

If you want to make some general points about those areas you should do that but if we can rely on your submission, that is fine.

It is in front of us.

Ms Inglis—I am happy to leave it as read.

I was going to make some very brief comments about right of entry.
I will leave that for the moment.

Senator CROSSIN—Thanks for your submission and your attendance here at such short notice.

We had a number of people put to us this morning that the seven days from the date of termination is in fact not long enough in order to apply to Fair Work Australia for a remedy.

Can you give us some practical applications as to why you believe that is also too short a time?

Ms Inglis—Absolutely.


In our experience, we quite often have difficulty meeting the 21 day existing window of opportunity to file an application on behalf of a member.

Typically when a member is dismissed they take some time to think about their options.

Sometimes people will simply see if they can get another job quickly so that they can move on and put it behind them.

They need time in order to consult the union or perhaps, in some cases, to get legal advice.
In our submission a seven day period is way too deficient to do that and to actually go through the processes of getting an application filed.

We think that it should be left at 21 days from the date of the termination becoming effective.

Senator CROSSIN—The termination becoming effective or the notice of termination?

Ms Inglis—For example, if notice is given and then there is a weeks notice period, we say that it should be from when it becomes effective.

Senator CROSSIN—Okay.


The other thing I wanted to ask you about was access to employee records on behalf of the union.

In your union, are you aware of any instances where employee records have been used unlawfully or if there has been any case or any allegation of the misuse of employee records by a trade union official?

Ms Inglis—I am not aware of any, no.

Mr Simpson—I am certainly not aware of it.


Senator CROSSIN—Also, I understand that there has been some concern put by some members that employee records would be used in an improper manner, yet unlike the Queensland legislation this legislation seems to have a fit and proper person test, a 24 hour notice requirement and more significant and heavier penalties for the misuse of those records.

Is that your understanding?

Mr Simpson—Yes it is.


In my experience in doing time and wages records under the old state act, you are going in on behalf of members so you are not exactly going to use that against them.

At the end of the day you are there to represent them, so I find the whole notion that we would misuse the records bizarre, from our point of view.

They are kept in the strictest privacy in our organisation; they are certainly not bandied around.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 43 Senator CROSSIN—So you have not had any instances in the industry that you are aware of where the records have been misused in any way; they have only been used for the purpose for which a trade union official would access an employees records?.

Mr Simpson—Up until recently I was in time and wages records for 12 years as an official and I did not see any instances in my time—certainly not in our union, anyway.
Senator ABETZ—I have a number of questions.

First of all, you tell us in paragraph 14 that the government undertook widespread consultation prior to the introduction of the Fair Work Bill.

Was your union part of that process, both before the election and before the introduction of the bill?

Mr Simpson—Certainly our federal body, the CEPU electoral division was.

I cannot say that the ETUQ was, no—bearing in mind that we are two separate organisations that are intrinsically linked.
But certainly our federal office was, yes.

Senator ABETZ—It seems that a lot of the things that you are now asking the Senate to reject or amend were in fact specific election policy—part of the Labor Party platform into which at least the ETU nationally had input.

Correct me if I am wrong, but I never detected before the election, the ETU campaigning against the right of entry rules remaining exactly the same as Julia Gillard’s, or the reduction of the 21 day period down to seven days.
I did not see anything on the TV or in newspaper ads or things like that.

Mr Simpson—Certainly in Queensland we have been.

If you want to make a comparison, our federal body is a bit like your Liberal Party branches.

At the end of the day, we all have a similar view but we do not always exactly agree.

Our national body puts forward some positions that we have some different views on.
That is the reason that we are hear today, otherwise we would have left if for our national body to do it in Canberra in a couple of weeks time.

Certainly we have publicly campaigned to our membership about what our views of the world are, which are contained in our submission to you today.
Senator ABETZ—So you actively told your membership before the last election that reducing the time period for filing an unfair dismissal claim from the Howard 21 days to Rudd’s seven days was a retrograde step for workers and they should be wary of that?
Mr Simpson—We have told our members on balance what the previous amendments and what the current bill entail in comparison to Work Choices and on balance our members have made an assessment that it is far superior to what was on offer before that, but I would be lying if I were to say we are a hundred per cent happy with the Fair Work Bill.

Senator ABETZ—I understand that but were the specific matters not specifically canvassed?

Mr Simpson—They were canvassed.


They were not canvassed broadly in newspaper ads or television ads, no, but they were broadly canvassed amongst our delegates.

Senator ABETZ—Like the ban on pattern bargaining—was that a very strong commitment?

Mr Simpson—I can tell you here and now the ETUQ’s position on pattern bargaining: we think it is ridiculous to put restrictions on pattern bargaining, especially in the industries we look after where nine times out of 10 the employers want it more than we do.
Senator ABETZ—I understand that but what I am trying to get a handle on is whether you publicly came out prior to the last election against the Labor Party policy in relation to, let us say, that aspect on pattern bargaining?

Mr Simpson—Yes, we did—at a rally at Musgrave Park about two months before the election.

That was certainly put forward to our membership.

Senator ABETZ—And on the right of entry?


Mr Simpson—I cannot give you a transcript of those rallies but I can assure you that right of entry was one of the highest issues on our list.

One of the biggest frustrations for an official from this union is the current right of entry rules, and the proposed ones do not do much for us as well.

Senator ABETZ—Do you find the right of entry rules under the Queensland legislation acceptable?
Mr Simpson—We have worked under those without too many problems for a lot of years, yes—since 1999.

Senator ABETZ—And do you see the exemption clause—for want of a better term—as causing any difficulties?

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 44 Senate Tuesday, 27 January 2009 Mr Simpson—Sorry?
Senator ABETZ—There is an exemption clause that if a worker— Mr Simpson—Yes, we have had issues with the exemption clause if you are referring to the employer coming and saying you can only meet a group of workers in a certain section of a workplace.

We have had massive issues with that because what employers do is allow us access to a work site, put us in a lunch room and then go around the workplace telling people that we are there but that they would prefer it if no-one went to see us.
At the end of the day, that is pretty counterproductive for a union official.

Senator ABETZ—What I was referring to is that, as I understand it, there is a specific provision in the Queensland legislation which allows an employee to say, ‘I don’t want to provide access to my employee records to the inspector or the union official.’ Has that caused you any problems?
Mr Simpson—It has caused problems where unscrupulous employers have stood over a group of workers and got them to sign paperwork saying, ‘Don’t let your union check your time and wages,’ and these are the same employees that are ringing us at six or seven of a night saying that they have been ripped off blind and treated pretty poorly.
But when we turn up to do the time and wages inspection, the employer has stood over them and threatened them and got them to sign a piece of paper stopping us from doing it.

So, yes, we have had numerous problems in that regard where the employers have literally stood over the workforce and made them sign the paperwork.

Senator ABETZ—But you have not been able to convince the Queensland government to change that legislation?
Mr Simpson—There is a lot in the Industrial Relations Act 1999 that the ETUQ is not happy with either, I can assure you.

That would be one of them.

Senator ABETZ—Why should you have access to people who have decided not to be members of a union when there is an organisation like, let us say, the Workplace Ombudsman who could undertake an investigation in the event of a breach?

Mr Simpson—Long before there was a Workplace Ombudsman there was us, Senator, and there was no other body to turn to.
The Queensland Workplace Rights Ombudsman has been good for us in that regard—we have used him on numerous occasions.

But still, at the end of the day, when you walk into a workplace where there are 20 or 30 people—and especially if they were or currently are on AWAs—all on different rates of pay and conditions I think it is vital that we go in and do it.

We do it in the strictest of confidence and we only do it for the benefit of workers.

We are certainly not there for any other reason.


Senator ABETZ—Yes, I understand that you are doing it for the benefit of workers, but if the worker were to say, ‘Thanks, but no thanks,’ why should you then still have access to their records even if they do not want you to?

Mr Simpson—I think you have to take it in the context of how we do that.

As I said before, we do not exactly go in and grab it and bandy it around at the end of the day.
If the worker wants to say, ‘Don’t let us near it,’ that causes me concern, especially when you talk to some of the employees I have met over the last several years—the ones on 457 visas who have been ripped off blind and who know that if they put their hand up and allow the union to go and check their time and wages records the union is going to find all sorts of stuff and the boss is not going to be very happy with them.

That has happened several times in the last couple of years.
Senator ABETZ—But the Workplace Ombudsman could check up on all that— Mr Simpson—The Workplace Ombudsman has not got the resources that the combined union movement in Queensland has got.

We have had some cases where the ombudsman has had to travel up to the Mackay area, for example, to check some of these 457 guys who have been ripped off blind.

He cannot be in Cairns, Rockhampton and Dalby at the same time.
Unless there are some significant funding increases in the office, I do not think they could cope with it.

Senator ABETZ—That is another argument.

There is a limitation on your right of entry.

There has to be some suspected breach, and there has to be 24 hours notice.

But then, if you satisfy those two requirements—a suspected breach and 24 hours notice—you can then go in and, as I understand it, inspect all the records of that employee.

Is that your understanding as well?


Mr Simpson—That is my broad understanding of the bill, yes.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 45 Senator ABETZ—That employee record might have, for example, a police record on it.

It might have a medical history on it.

It might have a complaint about a fellow employee.

It might have the initial job application with references attached.

That would potentially all be open to the official to look at and inspect.
Mr Simpson—Not in my experience.

We ask for time and wages records and we get time and wages records.

We do not get any other records of a personal nature for that employee.

With every one I have done in the last 12 years, I have walked in and sat down with the boss and either transcribed it off his ledger or he has given us photocopies of the payslips—which are kept in the strictest confidence.

Senator ABETZ—Under which legislation is this?


Mr Simpson—Under the previous legislation, the Industrial Relations Act 1999.

Senator ABETZ—The Queensland legislation.

Mr Simpson—We have never, ever walked in and got access to an employee’s complete file.

That has never been the case.


Senator ABETZ—Under the federal legislation, one of the concerns that have been expressed to members of this committee is that there used to be a definition of ‘record’ in the current legislation but that is no longer going to be the case under the Fair Work Bill.

Therefore there is a concern that it is going to be expanded right out.
Given what you are saying to me, I would assume you would not object to an amendment to the legislation that might restrict access to only those materials that are directly relevant to pay and conditions.

Mr Simpson—I am not 100 per cent across the arguments that have been put to this committee, obviously, and I am not sure what is going on with that.

But, at the end of the day, we have all done fit-and-proper-person training.

We have got to do a test to maintain our right of entry permits, as you know.
I do not think that there should be any restriction per se, but I would be very amazed to find any union official who wanted any more than time and wages records.

That is all we see.

And I would be very surprised to find any employer who would want to put that forward, regardless of what the definition in the act says.

At the end of the day, the time and wages records are all we seek—in my experience anyway.
Senator ABETZ—In that case, if that is all you seek, then there would not be any objection if the legislation were simply to be limited to the wages and time record.

Mr Simpson—Given that I am not au fait with everything that has been put to you, I would not want to comment any further than that.

Senator ABETZ—You say that that is all you are interested in.

In the event that there is, let us say, an unfair dismissal claim, you might be interested in the record which is unrelated to wages and timesheets.
Mr Simpson—By the same token, Senator, if we were in an unfair dismissal scenario and we needed access to those sorts of records and we needed to paint a picture of what the previous history of that employer had been, we would ask for that in discovery.

We would ask the commission for that as part of the ongoing debate in the industrial commission.
Senator ABETZ—That is a very good point, and that is where, if the commission were to order it— because it was of probitive value to the case—then I do not think many people could or would be able to object to that.

But if you were just to use your right of entry powers to access all that information prior to the industrial commission providing an order for that sort of discovery, that is the area that I am trying to canvass with you.
Mr Simpson—I understand what you are saying, Senator, but I am not across the debate that has been going on.

Senator ABETZ—Okay.

Well, can I ask you about this: there is a view within the community that I think you would subscribe to, and that is that the Labor Party has a mandate for the fair work legislation, that these were issues that were canvassed at the last election and therefore the people of Australia could be entitled to think that the parliament might pass the legislation as a broad principle.
If you agree with that, how do you approach issues where the government has clearly breached its election promises, like right-of-entry rules remaining the same?

They are not breaching the seven days for filing an unfair dismissal claim, but you are inviting us to vote the government down on a particular issue; you are inviting us to vote the government down on the issue of pattern bargaining.

We then come to the question: where does the mandate actually lie?
Mr Simpson—We are sitting in front of you today, Senator, to try and get the committee to listen to the valid arguments that we are putting to you for further amendments to be made to the bill before it is voted on EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 46 Senate Tuesday, 27 January 2009 by the Senate and goes back to the House.
The way our members look at it, and we have certainly canvassed them—I am not talking just as Peter Simpson, assistant secretary; I am talking as the guy who has been out and spoken to our guys since the election—the changes put forward in the Fair Work Australia Bill are a monumental improvement to workers’ conditions and rights compared to what they have currently got under Work Choices.
On balance, our members understand that we did not get all we wanted and they did not get all they wanted—all they campaigned for before the election.

They can wear this, but it will not stop our campaign.

We will continue to campaign for the ALP to put in further amendments, but what is on offer for us is certainly a sight better than what is currently in place.

Senator ABETZ—I am aware of that—that that would be the view of your membership.
I was just trying to ascertain how far you would take the mandate argument in relation to how the Senate should approach this legislation.
It seems to me you cannot say, ‘Labor got a mandate, therefore you’ve got to pass it,’ and then on the other hand say, ‘Well, there are a number of flaws in this legislation and therefore it needs amending,’ but then only the amendments that, let’s say, the ETU want, because—guess what—employer organisations are also coming to us saying there ought to be other amendments, which may in fact be contrary to yours.

And then we get into the whole discussion about where the mandate was, if there was one at all.
CHAIR—Mr Simpson, after you respond to that we will have to wind it up.

Mr Simpson—At the end of the day, Senator Abetz, I understand what you are saying, and in a perfect world you and I could slip across to the Fox Hotel and have three or four beers and I could convince you that my argument is the winning one and you could convince the rest of the committee to pull up the ETUQ’s amendments.

That would be in a perfect world, and it would go through the Senate and everyone would be happy.
Senator ABETZ—Chair, may I be excused!

Mr Simpson—I have been of a mind to do that, but I have been around long enough to understand that that is not the way it works and you have got to listen to all of the views of all the different parties, diametrically opposed as some of them will be.

But, in our view, even if the deal went through in its current form, without any amendments, it is still a sight better than what was on offer under the previous, Work Choices legislation.

Senator ABETZ—All right.


Thank you.

CHAIR—Thank you for your submission to the committee today.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 47 [2.00 pm] BROWN, Mr Donald Keith, Queensland Workplace Rights Ombudsman USSHER, Ms Wendy Deniese, Principal Investigations Officer, Queensland Workplace Rights Ombudsman CHAIR—We welcome to this hearing our next witnesses, from the Queensland Workplace Rights Ombudsman.
Do you have anything to say about the capacity in which you appear before the committee today?

Ms Ussher—I am principal investigations officer with the Queensland Workplace Rights Office, working with the Queensland Workplace Rights Ombudsman, Don Brown.

CHAIR—Thank you.

I invite you to make some opening remarks to the committee, and we will follow that up with some questions.

Mr Brown—Thank you.

In light of the busy day that the committee has had, I have two documents.
One document is what I wanted to say today, and the second document is what I will say, which is a precis version, if you like.

Ms Ussher has a number of copies that will be made available.

CHAIR—Thank you.

Mr Brown—Thanks for the opportunity to address you today.

The contents of my submission are drawn in the main from my experience as the ombudsman in Queensland and the experience I have gained as a member of the Queensland Industrial Relations Commission.
In the past 18 months, the Queensland Workplace Rights Office has dealt with in excess of 29,000 inquiries, and 900 case investigations have been undertaken and completed.

I submit that we are consequently able to identify matters which will assist in encouraging workplace fairness for the benefit of employers, employees and the government alike.
My written submission covers specific provisions of the bill as well as submissions concerning termination of employment, redundancy, common-law employment contracts, superannuation and, lastly, the taxi- and limousine-driving industries.

Due to time constraints today, I will only make oral submissions on two of those—namely, small business and compliance.

Of course, I am happy to answer any questions that might arise later.
With respect to the bill’s treatment of businesses with fewer than 15 employees—small businesses—you will see in my written submissions that I believe that this element should go.

The effect of this on the employees of small businesses is readily apparent.

However, the effect on small businesses themselves is less obvious.

Already small businesses contend with disadvantages in their competition with larger businesses.
They cannot hope to achieve similar economies of scale or provide the same access to career paths or skills development, and big business has traditionally been seen as a more secure employment option.

It is incontestable that most small businesses are already a distant second to big business in the race to attract and retain quality staff.
This much is obvious to any employee with a passing interest in their own future, and it is submitted that the entrenchment of the ‘fewer than 15’ line will only reinforce this.

Cognisant of the likely survival of the ‘fewer than 15’ provision and further cognisant of the fact that there are small employers doing their darnedest to compete in the labour market, I propose in my submission that a small business employer should be able to voluntarily opt out of the small business classification.
They could do so by providing a written undertaking to Fair Work Australia and choosing to become a ‘category A’ small business, thereby waiving the exclusions which would otherwise attach to their employees.

This, in my view, would signal to prospective employees that they will not lose any of the protections or security that they would enjoy as an employee of bigger business.
Information on employers that opt to be category A employers could be publicly available so that these employers would be recognised for this gesture.

In other words, the Fair Work Bill could provide that a small business employer could, without compulsion, opt to be a category A employer.

They could then advertise that fact and in doing so put themselves, I believe, into a better position when seeking to attract and retain good employees.
It is further submitted that having a statutory option to choose would go a long way to resolving the public debate on whether or not small business should be excluded from obligations placed upon big business and, if so, what the cut-off should be in terms of employee numbers.

It is submitted that these exclusions are potentially at the expense of a quality workforce for small business.

I make this comment: small business invests quite a bit in training employees.
For a small business operator to be constantly worried about their key employees sitting around the kitchen table on a Saturday morning with the paper looking for a job with big EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 48 Senate Tuesday, 27 January 2009 business is a waste of the resources and concerns of that small business.

I think things should change there, with respect.


With regard to compliance and enforcement, it is probably the case with all legislation that, without some forms of checks, balances, compliance and enforcement, those laws could be probably set at naught.

Submissions under the compliance and enforcement heading contained in my submission should be read carefully.

There are a lot of submissions of a technical nature which will require close examination by members of the committee.
I am happy to answer any questions on the detail, but put simply the level of enforcement of IR provisions in my submission is dependent upon the resources available to ensure compliance and power—that is, the laws supporting the resources.

In the Work Choices amendments two very effective levels of assuring compliance were largely taken out of the game—namely, state industrial inspectors and union officials.

Consequently, the likelihood of an employer being randomly inspected plummeted.
In the event that section 700(1)(b), which deals with the appointment of fair work inspectors by the Fair Work Ombudsman, becomes law, it is my strong submission that the federal ombudsman be prevailed upon to ensure as quickly as possible that the existing army of experienced state inspectors are appointed as fair work inspectors pursuant to the powers in that provision.
Further, and in any event, it is recommended that the agency arrangements which empowered state inspectors to exercise compliance powers under Commonwealth laws prior to July 2006 be reinstated in order to re-establish this valuable compliance resource.
In concluding my comments on this aspect of the submission I stress that while the benefits to employees and indeed the wider communities of a strong compliance regime are obvious and important it is just as important to protect the decent employers from unfair competition arising from the unlawful employment practices which in my experience have flourished in the last couple of years.

I said I would make comment on two issues, but senators seem to be listening.

Is it okay if I continue?


CHAIR—It is, but we do want some time to ask some questions.

Mr Brown—Very briefly, the non-compliance with occupational superannuation laws has in my estimation become an epidemic.

At a personal meeting between officials of the Australian tax office, me, my manager and one of my principal investigators, we were given information that the Australian tax office at the time was 18 months to two years behind in investigations of complaint of under or non payment of superannuation.
I have nothing to tell me that that has changed.

The problem that I see is this: the Australian tax laws now govern occupational superannuation from top to bottom and agencies like the federal Workplace Ombudsman and the state industrial inspectorate do not see it as their role to hop into the pool and try to enforce federal laws.
In my submission you will see that there is a proposal to bring those two levels—the federal ombudsman and the state inspectorate—back into the game to ensure people are kept up to the mark, because frankly the way it is now, especially in those little-regulated areas that we have had some involvement in such as competitive contracting areas in security and cleaning, some of the building areas, fruit and vegetable harvesting and similar types of areas, the laws with respect to superannuation are quite often honoured in the breach rather than honoured.
My submissions with respect to superannuation compliance I make strongly and, unless there is something further, they conclude my oral submission.

CHAIR—Thank you.

Senator FURNER—Commissioner, in your submission you touch on taxi and limousine drivers.

Can you elaborate on the issues there?

You indicate that there are a significant number of complaints.

What is the main thrust of the issues associated with those workers?
Mr Brown—If I use the word ‘employment’ here forgive me because what I really mean is bailment agreements.

Our office has received quite a number of complaints from drivers of taxis and limousines with respect to a number of things.

Payment of moneys owed is the predominant one.

There are complaints about the fact that, because of there being bailment arrangements rather than employment arrangements, the drivers are not covered by WorkCover.
There are some other what I would call workplace dispute type issues between bailees and bailors—that is, the driver of the cab and the owner of the cab.

They are the main issues that we get.

Senator FURNER—Where did they go to resolve these issues—for example, the payment of moneys owed?
Mr Brown—I am sorry to answer this with a statement, but my submission says that Fair Work Australia should be empowered to at least assist the parties with disputes over bailment contracts and a look at the EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 49 fairness of bailment contracts.

That is moving past the issue of whether there is a relationship along the lines of employer and employee.

But the problem seems to arise in this way.


The authorities have it that the driver and the owner are bailor and bailee rather than employer and employee.
If I can just loosely explain, those authorities are based on an assumption of what they call a joint venture, where the bailee goes out, drives the cab around—or the horse and sulky, as it was originally—collects all the money and then goes back and sits around the kitchen table at home with the person who owns the horse and sulky, or the cab, and shares the money in accordance with the agreement that they have reached.
That has changed to such an extent today that what you see is this: Cabcharge dockets everywhere and credit card use and those sorts of things.

So what happens now is that the cabbie has a payday.

If on that payday, every fortnight or month, the money does not turn up, where do they go?

They are not employees; they are a bailee and they have no recourse to the quick umpire that would exist in Fair Work Australia or that currently exists in the state or federal commissions.

So that is my recommendation.


With respect to the actual situation, I honestly believe that time has moved on to such an extent that a realistic look has got to be taken at the question of whether or not these people are in fact employees.

Without any disrespect to them whatsoever, quite a number of the people that we deal with have trouble speaking English and, in some cases, find it impossible to read and write it.
Yet these people have signed a bailment agreement and are supposedly able to understand it.

I am sorry to have gone on for so long, but your original question was: where do they go?

A matter that occurred as a result of a complaint to my office towards the end of last year went as follows.

A driver made some public, derogatory comments about the taxi industry, about policing and a few other things.

The taxi company, a major taxi company in Brisbane, took exception.
They handed out a penalty to this chap.

I think the penalty was two weeks off the road.

They have an internal dispute resolution mechanism which says that the cabbie, so suspended, may appeal.

The cabbie appealed.

An appeal panel of three persons was put together.

The cabbie had his sentence reduced from two weeks to a decision of between one and two weeks.

That was better than two, I suppose.


When my principal investigator interviewed the general manager of the major cab company in Brisbane, the information was volunteered that the three persons who made up the panel to hear the appeal between them owned 150 taxis.

My whole submission is that these people, if they find themselves in that sort of situation, or if they have not been paid, should have an independent umpire to go to.

This bloke might have richly deserved his two weeks off the road.
I do not know.

The point that I am making in answer to your question is that there currently is no independent umpire available to these people unless they are prepared to shell out 10 or 20 grand and finish up before a court somewhere.

Senator FURNER—I have one quick question with respect to right of entry.

Submissions have been provided today from employer associations indicating that there appears to be no substantive disputes concerning that particular issue in Queensland.
Reflecting on your previous role, I think my memory serves me correctly that I appeared before you as a union official when you were industrial commissioner.

The shoe was on the other foot and the employer had denied the union right of entry.

I wonder whether, in your experience, you could elaborate on any significant disputation concerning right of entry issues within Queensland?
Mr Brown—In my time in the commission, 10 years ago this year, I have not been aware of any formal application to challenge somebody’s right to enter a premises pursuant to their rights under the Queensland act.

But I do recall—and I have not looked behind me so I do not know who is there or what they are carrying—that there was an official years and years ago who had their right of entry withdrawn.

That was in the area of the independent schools in Queensland.
I know the chap’s name but I would not be prepared to say it here.

That would have been 15 or maybe 20 years ago.

Senator FURNER—That is not bad—one in 15 years or so.

Mr Brown—From memory, he promised to be good after that.

Senator ARBIB—What about complaints from employers in terms of union right of entry?

How often did you come across complaints in your time in the commission?

Mr Brown—Not so much concerning right of entry.


The usual format involved a dispute where the union allegedly conducted themselves in a way that offended the employer and the employer then complained that the union did not follow the dispute settlement procedure to the letter.
In my experience, sometimes that included an allegation that the union official themselves did not conduct themselves in the spirit of that EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 50 Senate Tuesday, 27 January 2009 agreement.

I do not recall any specific instance where a union official’s behaviour in terms of right of entry provisions has been a major issue.

Senator ARBIB—How do you see the bill’s right of entry provisions working in future?
Mr Brown—I have deliberately avoided making submissions on the bill broadly, despite the fact that I might hold a personal view.

I have confined my submissions to those areas that we commonly come in touch with in the Queensland Workplace Rights Office.

I would only be giving you some homespun philosophy if I were to answer that question.

Senator ARBIB—Given your experience and you have seen the bill, is it that different from the past?
You have not seen many complaints or disputes in the past, what is your view?

Mr Brown—I do not want to appear uncooperative, but it probably would not be helpful for me to answer that because it would only be a guess.

From my experience, I have explained how many instances there have been where someone has had their rights withdrawn.

Senator ARBIB—But it has not been a big issue in Queensland?

Mr Brown—No it has not been.

Senator ABETZ—Can I congratulate Senator Furner on his line of questioning.
As a former taxi driver I was very disappointed that he did not deem it appropriate in his verbal comments to canvass that area.

I have a question in relation to paragraph 15 of your supplementary submission, if I could call it that?

Mr Brown—Certainly.

Senator ABETZ—You refer to investigations into the contract security industry, recreational diving industry, fruit and vegetable et cetera.

Are all those sectors are under the state legislation in Queensland?

Mr Brown—Not entirely, no.


Senator ABETZ—But your investigations would be limited to your state responsibilities?

Mr Brown—Not at all.

My investigative powers are provided by the state act and they are carried out in accordance with the state act, and to date no employer has taken the point that the employer might not be compelled to answer my questions.

There has been a lot of cooperation.

Senator ABETZ—Is the recreational diving industry under a state or federal award?
Mr Brown—As it turned out, both.

Some of those employers are Pty Ltd entities or trading corporations; others are sole traders and partnerships.

Senator ABETZ—How long have you been the ombudsman?

Mr Brown—A touch over 18 months—19 months.

Senator ABETZ—And before that you were a commissioner for a number of years, I understand.

Mr Brown—Yes.

Senator ABETZ—And before that?

Mr Brown—As luck would have it, I was an official with the Miscellaneous Workers Union from about 1977.
Senator ABETZ—You deserved a break after all that to get onto the commission!

So you have had a lifetime of experience in the workplace relations area—would that be fair comment?

Mr Brown—Yes.

Senator ABETZ—Thank you for that.


In relation to the state legislation on the right of entry, I understand that state legislation here in Queensland contains a provision that has been described variously but is like an exemption clause, where an employee can say, ‘I don’t want my file inspected by an official should they seek to inspect it.’ Is that correct?

Mr Brown—Yes.

Senator ABETZ—Has that exemption clause caused any difficulties that you are aware of?
Mr Brown—Yes, though not prolific difficulties.

This is fairly isolated.

I can recall one—though my memory tells me that I have probably been in touch with it about three or four times—where employees across the board have been approached by the employer with a standard fill-in-the-gap letter requesting that they sign that to prevent an official inspecting their wage records.
The concern it has caused, of course, is that, human EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 51 nature being what it is, the employees would like to cooperate where they can and avoid confrontation, so many have signed with one hand and picked up the phone with the other.

Senator ABETZ—Can that exemption be revoked at any time under the legislation?

Mr Brown—I think it can, yes.


Senator ABETZ—So, even if they have signed it, immediately they have concerns they can sign a revocation so that it does not continue indefinitely against the worker’s interests?

Mr Brown—As a statement of fact concerning the state act I think that is right.

Senator ABETZ—What does the state act allow the official to look at—wages and time sheets?

Is there a restriction on what can actually be inspected?

Mr Brown—I do apologise.


I do not have the act in front of me, but I have a fairly good recollection of it.

I think it is entry for the purposes of inspecting working arrangements and time and wages.

I may be wrong.

Senator ABETZ—Would you be so kind as to take that question on notice for us and provide an answer to the committee?

Mr Brown—Certainly.

Senator ABETZ—One of the suggestions that has been made is that there is a limit on the legislation on the right of entry—namely, a suspected breach.
You then have to give 24 hours notice and after that the inspector has carte blanche.

Mr Brown—The inspector or the union official?

Senator ABETZ—Sorry, the union official, who, having been properly empowered to undertake this official role, could then inspect the whole file of the employee.

For example, if could contain a police record, a medical record, a written complaint about a fellow employee and the job application together with referee reports.
Therefore, there is, I think, a genuine concern about privacy.

I am just wondering whether, in your mind, it would cause any difficulties if job applications, police records, medical certificates et cetera could be quarantined out from that which could be inspected.

Mr Brown—I will take that on notice, but it occurs to me that, if the matter in question were to be the subject of an application for determination by a tribunal or a commission, all of that material would be discoverable in any event.
Senator ABETZ—That is different, with great respect.

If a commission were to order discovery, like a court or the commission et cetera, that would be, if you like, due process that these documents were considered to be necessary whereas if somebody says, ‘Right, I suspect a breach of wages,’ and goes in then potentially they have the capacity to just grab the whole file, slowly flick through it and gain information that is inappropriate to the actual breach that they are allegedly investigating.
Are you with me?

Mr Brown—I see what you are saying, yes.

We will look at that and give you a response in writing.

Senator ABETZ—Alright, thank you very much.

Mr Brown—Is it appropriate that I address that to the secretary.

Senator ABETZ—Yes, just address that to the secretary of this committee, Mr Carter.
Senator HUMPHRIES—Just to take up that point made about the taxi and limousine industry, I would have thought that the definition of an employment relationship was really a matter for state parliament rather than the federal parliament.

I do not think the federal parliament would have any power to define a certain relationship as being an employment relationship rather than a bailment relationship.

Is that your understanding?


Mr Brown—Under the state act there are deeming provisions where groups of people can be deemed to be employees.

I am glad you have raised that issue again because there is something I probably should have said earlier—that is, for some of the limousine driver issues that we have investigated I do not believe they are bailees; I believe they are employees.

So in making this submission there is no concession that they are bailees.
To address your question, it is a complex issue.

I think the federal parliament would have the power, if it chose to, to deem taxi drivers who are not owners to be employees.

Having said that, the next step is the state government.

In the event that the powers related to sole traders and partnerships are referred federally, it would be pointless for them to be making a decision that in effect had no effect.
Right now, if they made some EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 52 Senate Tuesday, 27 January 2009 sort of legislative changes to deem taxi driver bailees to be employees then it would only apply to noncorporations—sole traders and partners.

Senator HUMPHRIES—There would be lots of noncorporations who would employee taxi drivers, wouldn’t there?

Mr Brown—Probably, I can only comment anecdotally.


Senator HUMPHRIES—I turn now to the other issue you raised in your submission about what you called the small-business differential.

You make what appears, I think, to be a reasonable argument that people should have some flexibility as to whether they fall within the ‘protections’ of the legislation or not—although you characterise it as a burden more than a protection I suppose.
I wonder what kind of interface you have with the small-business sector, because in my experience I can honestly say I have never come across a small- business person who has argued for the application of the unfair dismissal laws in the case of their business.

In my experience, they always argue that these things should be lifted off their shoulders.
Do you imagine that there would be many people in small business who would take advantage of an option, as you suggest, to opt to become a category A small-business employer?

Mr Brown—There are two points to make here.

First of all, I think you are right.

If we sent a survey to businesses large and small and asked, ‘Do you think there should be reinstatement laws?

Yes or no,’ the vast majority would say no.

That is our history.


But if you sent a survey around to those employers with less than 15 employees with some explanation, particularly in the times of full employment or high employment that they have experienced over the last five years or so, then a lot of those employers would say yes.

I will explain.

Across a major construction site you have contractors, large and small, who have differing rights and obligations depending on the size of the business.
That has been the case for some time with respect to the 100 or fewer employees, and now fewer than 15 in this proposal.

What you find is that employers complain when their employee jumps the fence and takes up a vacancy that exists with a larger employer.

The problem is that it costs no less for the smaller employer to induct that person into the site and it costs them no less for WorkCover and all those sorts of thing.
They do the work but the moment the better paying job with a bit more security comes along, off the employees go.

That is my experience.

Yes, employers would rather that did not happen but I think if we provided the option for a small employer to be properly, formally recognised as an employer that will pay and will accept those responsibilities, then no harm could be done.

And if not one employer opts to become a category A employer no harm is done.

If 10 or 12 do, good on them.

If more do, so be it.


I think it sends a positive message.

Senator HUMPHRIES—Okay.

Mr Brown—Are you aware that it affects the redundancy provisions, not just the reinstatement stuff?

Senator HUMPHRIES—Yes.

Thank you.

Senator CAMERON—You indicated in your verbal submission that effective compliance with awards and agreements needed a range of compliance measures, and one of them included the trade union movement’s rights to enforce compliance.

Is that correct?
Is that correct?

Mr Brown—Yes, I referred to the removal of those by Work Choices.

Senator CAMERON—So if the union movement is part of the compliance process is it sufficient, do you believe, for the unions only to have access to wages and time records?

Mr Brown—To be fair, I have taken that question from Senator Abetz on notice.

Senator CAMERON—You have taken it on notice.

I am sorry about that.


Various agreements cover a whole range of issues—it is not just wages and time record issues—and you have taken that on notice.

I might leave that issue if you are taking it on notice.

Are you aware of the measures that can be taken against someone under the proposed new legislation if they breach the privacy provisions?

Mr Brown—No, but if I was aware of everything Wendy would not be sitting here.

No doubt, she is aware.

No, I was not aware.


Senator CAMERON—Would it surprise you if I were to indicate to you that an individual could be fined $6,600 if they breach the privacy provisions under this legislation?

That means that if they have access to some knowledge of an individual employee’s records and they breach that they can be fined $6,600.

Mr Brown—(A) I was not aware of that but, (B) I am not surprised.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 53 Senator CAMERON—Given that you have taken the earlier question on notice I will leave it at that.

Senator SIEWERT—I would like to go to your proposal on redundancy payments and entitlements.

You made some comments in your submission around, if I understand it correctly, your concerns about, redundancy payments, given the financial situation at the moment.

Also, you have made a proposal about GEERS.


Could you go a bit into your thoughts behind that, please?

Mr Brown—I will preface my remarks by saying that my remarks are mine; They are not in anyway to be misconstrued as representing the views of the Queensland government.

My submission with respect to provisions for superannuation is born of a concern about impending numbers of redundancies, and the ability of industry to cope with the level of payout.
Good employers, with access to the appropriate economic support, make provision for things like redundancy, but some sorts of industries—we have had a lot to do with the contracting industry and the like—do not seem to.

When it comes time to close the doors, as has been the case in a few instances of late, there is no money, so these people are sent off through the various processes to try to recover holiday pay and the like.
The process, quite broadly, is an application to GEERS, the General Employee Entitlements and Redundancy Scheme.

I am of the view—and I am no economist—that the mounting numbers of job losses and company failures will lead to maybe not an unbearable burden but a significantly higher burden on GEERS and the public purse than has historically been the case.
The newspapers reported in the early stages of the ABC childcare events that, if all of the centres were to close, if ABC were to fail completely, the outstanding redundancy and statutory entitlements of the employees would total something like $1 billion—a lot of money.

That is the basis of my submission.


On the other hand, I would say that it should be approached with caution, because the fear of companies going into bankruptcy and causing redundancies that way might actually be increased if an extra burden, or too much of an extra burden, were placed on them at this stage.
So, if there were to be some sort of percentage levy placed on industry to provide or ensure that they make provision for redundancy payments in the event of a company failure, then in my estimation the amount should be approached with caution because, as I say, extra burdens, especially avoidable burdens, at this stage probably should be seriously considered.

Senator IAN MACDONALD—Thanks, Commissioner Brown, for your submission.

There was something you said a second ago that I wanted to clarify.
You said you are not speaking on behalf of the Queensland government?

Mr Brown—No, I am not.

Senator IAN MACDONALD—No, but as a commissioner you would not be in any case, would you?

Mr Brown—No, but as ombudsman I am a holder of an independent statutory office and I just wanted to make it clear that the views that you are receiving, the submission, is the submission of this ombudsman, not the submission of the Queensland government.
Senator IAN MACDONALD—That is what I would have assumed—that, as the ombudsman, you would not be speaking on behalf of the Queensland government.

It is just that you thought it necessary to clarify that that made me wonder if perhaps your position was different to that of other ombudsmen.

But you do not speak for the Queensland government.

Mr Brown—No.

There are plenty of ombudsmen.

Senator IAN MACDONALD—Who do you report to?

Mr Brown—The parliament.

Senator IAN MACDONALD—To the parliament.


Through the Speaker—is that right?

Mr Brown—Through the minister.

Senator IAN MACDONALD—And your references are referred to you by the minister?

Mr Brown—My references?

Senator IAN MACDONALD—If the government wants you to look at things in particular, does that— Mr Brown—The minister is one of the sources, yes.

Senator IAN MACDONALD—What are the other sources?

Mr Brown—Anybody.
Mr Brown—Anybody.

I can initiate inquiries or investigations by myself or as a result of, in the case of the contract security industry, voluminous complaints from one industry.

It is not closely regulated.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 54 Senate Tuesday, 27 January 2009 Senator IAN MACDONALD—Thanks for that.

That is as I understood it—it is just that you threw me off the track a fraction.
Mr Brown—I should clarify: at this point in time, there has been no direct request from the government or the minister to conduct any inquiries.

Senator IAN MACDONALD—Into?

Mr Brown—Anything.

I have simply performed my functions pursuant to the legislation.

Senator IAN MACDONALD—Okay.

Just following up something Senator Abetz asked earlier about paragraphs 11 to 18, and in paragraph 15 Senator Abetz selected the recreational diving industry.
The fruit and vegetable harvesting industry is something almost entirely under state legislation—is that correct?

Mr Brown—No.

There is probably a higher incidence of small sole traders and partnerships in the farms and among some of the contract labour people, but no—definitely the majority would be federally regulated.
Evidence of that is the fact that after my investigation into the industry there was a joint approach to the compliance issue by the state industrial inspectorate and the federal ombudsman.

The federal ombudsman has recently announced the recovery of about $55,000 just from hostels that put up the backpackers that pick the fruit.

Senator IAN MACDONALD—Okay, but what was your point in that submission?

Were you suggesting that there was no compliance anymore?

Obviously, that is not right.


Mr Brown—I am of the mind that the average responsible person in business would reasonably have factored in an inspection from time to time from an appropriately appointed state industrial inspector or a union official.
The likelihood of that occurrence diminished substantially over time after Work Choices took away the right of union officials to roll into a place and ask for the books et cetera and the right of state industrial inspectors to inspect the records of a corporation.

I should quickly add that that did not occur with the advent of Work Choices; Work Choices came in in March 2006.
The contract between the state and federal governments that allowed state inspectors to inspect corporations, if you like, or federally regulated employers endured until July that year, so there was actually a period between March and July when the state inspectors kept going.

Senator IAN MACDONALD—But state inspectors and union officials have always had the right to inspect under state legislation or awards.

Mr Brown—Yes, for employers regulated by a state industrial instrument.
Senator IAN MACDONALD—Yes.

You can give me the figure, but at least a big percentage of the recreational diving and fruit and vegetable industries would have been under state awards, yet you are saying that, in spite of that, there were still a lot of breaches happening which obviously were not being picked up by union officials or state inspectors.

Is that what you are saying?

Mr Brown—No, in Cairns, out of about 18 operators, there were two that were not corporations.
Senator IAN MACDONALD—Diving people?

Mr Brown—Yes.

Senator IAN MACDONALD—Okay, but what about the fruit and vegetable industry, which is the one I picked.

From my experience in the bush, I would have thought that most of them would not have been corporations; they would all have been under state awards, or at least most of them.

Mr Brown—No.

Senator IAN MACDONALD—The cane-harvesting industry and the banana picking industry?

Are you saying they are all corporations?


Mr Brown—By and large, they are proprietary limited entities.

CHAIR—We are going to have to wind up there.

Mr Brown—By way of clarification, I said before that the federal ombudsman recovered $55,000 solely from hostels.

There were 16 employers.

Twelve of those were hostels; four of those were farmers.

So all four of the farmers who had to pay money were corporations.
Senator IAN MACDONALD—So you are saying that the union officials and the state inspectors had the right to go and inspect these people under state awards, but they were still breaching the law.

Obviously, the union officials and the state inspectors were not doing their job.

Can I presume that from what you have said?


EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 55 Mr Brown—The direct answer to that is that one of the sources of the request to investigate the industry was the Australian Workers Union.

The official based in Bundaberg raised the complaint with my office on the basis that they were not able to get anywhere.

I can only conclude from that that they had some history in the industry and tried to resolve matters without success.
The state inspectorate were able to give me quite a lot of detail with respect to the inspections that they had done and the findings that they had made—this was in the Gatton-Lockyer area—with respect to a range of companies up to March 2006.

With respect to most of them, they were hands off, but with respect to those noncorporations, they kept going.

Senator IAN MACDONALD—Thanks for that.

I think I know what you mean about the situation in Bundaberg.
CHAIR—Thank you for your presentation to the committee today.

Mr Brown—Thank you.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 56 Senate Tuesday, 27 January 2009 [2.45 pm] PEETZ, Professor David, Private capacity CHAIR—We welcome our next witness to the inquiry, Professor David Peetz.

Would you please state the capacity in which you appear before the committee today?

Prof. Peetz—I am a professor in employment relations at Griffith University.

I am here in a private capacity.


I am not representing the university but am here as an academic.

CHAIR—We have received your submission, so I invite you to make some opening remarks to the committee to be followed by questions.

Prof. Peetz—I noticed when rereading my submission this morning a few typos, which I will pass on.

The problem is that I used some outdated nomenclature.

My submission really focuses on some specific matters of implementation or detail in the legislation.
I am particularly focusing upon where there are matters of detail that might depart from the policy that was set out before the 2007 election in Forward with Fairness and the implementation plan or where there are matters of detail that I think need consideration.

In my submission I have sequenced them more or less in the order in which they appear in the bill.

It is not an indication of their importance.


I want to start off with something that is not actually in my submission because, with the pressures of time, it was something that I only really thought about properly after I had made my submission.

This relates to the process of appointments to Fair Work Australia.
The Forward with Fairness implementation plan, which is the second of those two documents that the ALP put out before the election, states: Fair Work Australia will be independent of unions, business and government … and: Labor will achieve this by requiring that the Minister … will only be able to make an appointment after completing the following processes.
This basically involves a shortlist of candidates scrutinised by a panel comprising senior officials from the federal government department, from the Australian Public Service Commission and from each of the state governments.

The minister will be required to consult with the opposition spokesperson for IR and the president of Fair Work Australia before any decision is to progress to cabinet.

I think this a commendable policy.


Anything that promotes bipartisan appointments to Fair Work Australia reduces the scope for the stacking of the body by one side of politics or the other and is to be endorsed.

But I think if the minister is going to be required to do those things as the policy states then it does need to be put into the legislation.
I would suggest that in clause 627 you could put in a subclause (5) called ‘consultation’ which would state: Before the Governor-General appoints a person to Fair Work Australia the minister must ensure that consultation has the Department of Education, Employment and Workplace Relations; the Australian Public Service Commission; occurred with each of the following: • • • • • the President of Fair Work Australia.
the relevant member of the opposition; and officials from each relevant state and territory department that wishes to be consulted; I think that form of words or something like it would require that process of consultation to take place without being overly specific about exactly what process it would involve.

I will move on to matters I have talked about in my submission.

I will focus on the more important of the first of those.
In respect of the right to request flexible working hours, some time ago I had a look at the relevant British legislation and I thought that had a lot more going for it than the rather parsimonious provisions in the Fair Work Bill.
I have proposed some amendments in my submission to ensure that the employer understands the circumstances of the request; that the employee is able to fully explain their needs— something particularly important for those who are disadvantaged in the labour market, like people from non- English-speaking backgrounds; that the employee can understand the situation of the employer, if and when they get knocked back; and that the employer will take the request seriously and that it will not just be dismissed on dubious grounds by a junior level manager or supervisor.
The recommendations I have put in EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 57 there involve the employee having a right to a meeting with a management representative and a right to take a companion along—a companion being somebody else who works in that particular organisation; some clearer specification of what is meant by ‘reasonable business grounds’, which is more clearly set out in the British model; and a right to internal appeal—it would be basically up to the employer to determine how it would work, but the employee would at least have a right to go back and say, ‘Look, I don’t think that is appropriate.’ I also think that the legislation should not preclude employers and employees from reaching an agreement.
If you have a dispute over what constitutes reasonable business grounds—whether the matter has been rejected on reasonable business grounds—it should be possible for employers and employees to agree that this can be settled by Fair Work Australia or by some other person if they so wish.

Really, I do not think the law should stand in the way of parties putting provisions in their enterprise agreements that enable them to progress such matters to conclusion.
At present the wording of the bill would prevent that from happening.

So I am recommending that clauses 739 and 740 be amended so that Fair Work Australia or another person can deal with a dispute over whether the employer had reasonable business grounds under section 65 or 76, where there is an enterprise agreement that applies to the relevant employees, and it permits arbitration to occur over such failures—or reference to this independent body.
On matters pertaining and permitted matters, I note that Forward with Fairness promised that bargaining participants would be free to reach agreement on whatever matters suited them.

The bill clearly breaches this commitment by requiring that agreements be on permitted matters, including matters pertaining to the relationship between the employer and the employees or the employee organisation.
The issue I mentioned just before is an example of that problem of an unnecessary intrusion into the relationship between employers and employees, in effect telling employees what is best for them.

If employers and employees wish to reach agreement on social, environmental or community issues as part of an EBA—something that is not directly pertaining to the employment relationship—I do not see why they should not be free to do so.

Therefore, I recommend that subclause 172(1) be deleted.
In terms of the access period that employees have to consider agreements before they vote on them, I am suggesting that seven days is a bit short.
Where bargaining has not taken place—that is, where an agreement is proposed by the employer—and the employees only have seven days to decide, I suggest that the default should be 14 days, to give them enough time to properly consider it, but that this can be reduced to seven days by agreement between the bargaining representatives, which would reduce the time lag in those situations.
In relation to the high-income threshold, I note that the legislation does not explicitly set out what the high- income threshold is; this amount will be set out in regulations rather than in legislation.

I am not convinced that this is a good idea, because it raises the possibility that a future government could effectively destroy the awards system simply by regulation—that is, by setting the high-income threshold at a lower level.
If a future government wishes to lower the high-income threshold, it should have to do so by passing amending legislation through both houses of parliament, not just through regulations.
So I recommend that clause 333 be amended either to specify the starting point for the high-income threshold—the fact that there will be a formula for indexation then perhaps referring to that formula in the regulations—or alternatively to state that the high-income threshold cannot be lower in any particular year than it was the previous year.
In terms of genuine redundancy, I suggest that clause 389 be amended to clarify it a bit by including a statement that a person’s dismissal is not a case of genuine redundancy if Fair Work Australia is satisfied that part of the reason for the employee’s dismissal was a prohibited reason under part 3-1.

In terms of applications for unfair dismissal remedies, I am suggesting that the seven-day time period is a very short time for lodgement.
It is fine where employees are aware of their rights and are in a position to the lodge a claim, but there may be some who are unaware of their rights or are, indeed, unaware of their obligation to do so within seven days or are too upset to lodge a claim within that time.
The New Zealand legislation provides an exemption from their time limit, which is considerably longer in the first place, where the employee has been so affected or traumatised that they are unable to properly consider raising the matter.

I think the legislation should give Fair Work Australia a bit more guidance on what constitutes a valid reason for delay beyond the seven-day period.
That would include things where the employee was not aware of their rights or obligations or where they are too affected or traumatised, as is set out in the New Zealand legislation.

On pattern bargaining and equal remuneration, I think there is a potential for the unintended consequence of an inconsistency with the proposed equal remuneration objectives.
I am therefore suggesting that clause 412 should include a provision stating that pattern bargaining does not include situations where a wage claim is based on seeking equal remuneration for male and female workers for work of equal or comparable value.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 58 Senate Tuesday, 27 January 2009 In relation to protected action ballots, I know that Forward with Fairness stated that the secret ballot process for protected action will be fairer and simple and will be supervised by a Fair Work Australia, but it still seems a very long and complex administrative process.

The provisions really should be shortened and simplified.
Other countries with secret ballot provisions do not spend anywhere near as much time in dealing with it in legislation.

I talk about proposing to cut out some of the unnecessary paraphernalia in the legislation.

In terms of payments not being made for unprotected industrial action, I know that there is a provision that if you take unprotected action for less than four hours then the employer is required to deduct four hours pay from you.
I think this is really another instance of the bill trying to tell employers what is good for them in intervening in that relationship between employer and employee.

It really should be up to the employer to determine how they are to respond to industrial action.

The automatic deduction of four hours pay means that there is really a very strong incentive for employees who might only want to take off 20 minutes.
For example, there was that situation a while ago where a hat was handed around to collect some money for the widow of a worker who was killed in an industrial accident.

They were docked four hours pay.

That situation would continue under this scenario.

I think that really more discretion should be allowed for employers in this area through making clause 474 match clause 470.
I thought one of the major advances through the Work Choices legislation was the establishment of a serious enforcement function after there had been years of neglect that stretched back to the early 1990s that really arose from the way in which education was prioritised over enforcement by the administrative agency concerned.
I think it is best that the education function of Fair Work Australia be separated from the enforcement function of the Fair Work Ombudsman so the ombudsman can get on with the job of enforcement and leave education to Fair Work Australia.

I make a number of other proposals in my submission which I have not touched on in these opening remarks, and I also make some comments about looking towards the future.

There are some matters with regard to the safety net.
I think we need to think about the method of amendment of the safety net through the minimum entitlements and also the expansion of it, particularly the right to request flexible working hours.

It is not appropriate that only parents of preschool children have access to flexible working hours.

Parents of disabled children and carers are in just as much legitimate need as parents of preschool children.
Indeed, over the long run I think we can look at the question of making that a right for all employees, particularly given it is only a right to request; it is not actually a right to access.

That concludes my opening remarks.

Senator CROSSIN—I want to ask you about the matters you raise in respect of parental leave—it goes to quite a number of areas—where you talk about the need to have a definition of ‘reasonable business grounds’.
Is there any case law that has touched on what might be defined as reasonable business grounds that we could use to guide us in this?

Prof. Peetz—I cannot tell you off the top of my head.

I will take that on notice and get back to you.

I presume the best way in situations like this is for me to send something in writing to the secretary.

Senator CROSSIN—Yes.


So the definition that you have provided as an example on page 5 is not based on any case law; it is the UK— Prof. Peetz—It is based on the UK model—that is right.

Senator CROSSIN—That is a definition that is used in their legislation?

Prof. Peetz—That is right.

Senator CROSSIN—I noticed this morning in one of the earlier submissions that dismissal on the grounds of pregnancy is not automatically unlawful.

Do you have any views on that?


While we are on the issue of parental leave, I thought I would ask your view about that as well.

Prof. Peetz—I am surprised at that.

I would have to look at the provision, and I will not waste the committee’s time by doing that.

If that is the case, I certainly think it is something that needs to be rectified.

Senator CROSSIN—I will be able to find it quite quickly in my notes here.

It is in the Queensland Council of Unions’ submission.
They say that the Fair Work Bill does not provide protection against dismissal due to pregnancy.

Queensland’s IR law, the Queensland state based legislation, expressly states that an employee cannot be dismissed due to pregnancy, but there is not that same guarantee in the Fair Work Bill.

Do you have a view about Queensland’s laws versus this lack of wording?
Prof. Peetz—To the extent that there is a shortfall in protection against dismissal for grounds of pregnancy, I think that shortfall should be redressed.

If the Queensland model adequately does that, then that sounds good.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 59 Senator CROSSIN—If you were dismissed on the grounds of pregnancy, it would not automatically follow that you could take a claim under the federal Sex Discrimination Act, would it?
Prof. Peetz—You would think you would be able to, but I am not a lawyer; I would have to look it up.

Senator CROSSIN—You have also raised with us this issue about having to lodge an application for unfair dismissal remedy within seven days of the dismissal.

You think the time frame should be longer than that.

Quite a lot of witnesses today have put it to us that they think that the reduction from 21 to seven days is unreasonable.
Prof. Peetz—Twenty-one days, as it was, was fairly short when you compare it with the 90 days in New Zealand, for example.

Seven days is what was specified in the election policy.

It said, in effect, that it would usually be seven days.

That is fine for people who know their rights, particularly if they are in a unionised workplace where they have easy access to information.
That seven-day time frame is going to create some pretty significant problems for people who do not know their rights and do not know they have to lodge within seven days.

I think the law has to be fairly generous in terms of allowing exceptions to that in reasonable situations.

I mentioned examples where people do not know they are entitled to seek redress or, more commonly, do not know they have to do it within seven days.

I also mentioned examples where people were too traumatised to deal with it.
And that does happen.

You feel like you do not want to deal with it, that it is too awful.

And it is only after a long period of time that people are able to make rational decisions in these areas.

I think that, if you are going to have that seven-day limit, which is what the election policy said, you do need to, as is the usual situation, allow exemptions fairly readily for those sorts of situations.
Senator FURNER—I understand that you may have come under attack by the previous government for your reporting on Australian Workplace Agreements in respect of their erosion of conditions and the like.

Is that correct?

Prof. Peetz—Yes.

Senator FURNER—I take it that was drawn to a conclusion when the reporting of that material was cut short in, from memory, 2007, when that material was no longer available.
Have there been any changes in respect to researchers gaining evidence pertaining to the conditions of agreements of late under the current arrangements?

Prof. Peetz—Are you asking me about what access researchers have to the contents of agreements and whether that is better than it was before?

Senator FURNER—That is correct.

Prof. Peetz—My understanding is that it has improved.
There was some information released publicly by the new minister, probably two or three months after she took over the portfolio, which had some information about what conditions had been lost.

It was pretty much along the lines of the information that had been leaked to the Sydney Morning Herald.
I have not personally sought to undertake research on the content of agreements since then—there are many other things to do as well—but my understanding is that, bearing in mind the need for confidentiality, it is now easier to get access to confidential information that does not disclose people.

Senator FURNER—There is greater transparency now than there was in the past.

Is that what you are saying?


Prof. Peetz—There are other researchers who have been seeking to do research in this area more recently who would be able to give you a better idea as to what hoops and hurdles have to be gone through at the moment.

Senator SIEWERT—I want to follow up on the individual and flexibility arrangements and look at the extent to which these may or may not operate as AWAs operated—whether they were post Work Choices or pre Work Choices.

Do you have an opinion on that?


Is there the potential that they will essentially become pseudo-AWAs?

Prof. Peetz—They do not have the same potential that AWAs had.

The key thing about AWAs—or maybe the worst thing about AWAs—was when the no disadvantage test was removed and they provided the scope for conditions to be reduced quite significantly.

That is not available through these flexibility agreements.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 60 Senate Tuesday, 27 January 2009 Another issue is that really there were two main ways in which AWAs were used.

One was to reduce pay and conditions.

As I said, that became worse after the no disadvantage test was ended, although there were problems with the administration of the no disadvantage test anyway and there were instances where people made off even under the old system, but it became obviously worse after it was removed.
The other main purpose of using them was basically as a means of trying to circumvent employees’ desire where they wished to belong to a union or be collectively represented by a union.

These individual flexibility agreements do not really have any implications in that area.

They do not override or preclude a collective agreement from being negotiated, so they really do not provide the same potential that AWAs were providing.
And there is that test that you still have to be no worse off under the flexibility agreement.

So there are much better safeguards in there than there were for AWAs, I think.

Senator SIEWERT—Are you confident that the fact that they do not have to be registered, and therefore open to some sort of review, is acceptable?

Prof. Peetz—I must say I have not given thought to the fact that they are not registered.

I will take that on notice, if that is okay.

Senator SIEWERT—That would be appreciated.


You have called for compensation for working on public holidays actually being in the NES.

Is that to ensure that in fact that is not bargained away?

Prof. Peetz—Yes, that is right.

The pre-election policy did state that people would be compensated for working on public holidays and that this would be set out in awards, so that is the appropriate place for the compensation to be determined, not in the legislation.
But the legislation does need to say that these people will actually be compensated.

If you allow it to be bargained away then people who are working on public holidays and people who are not working on public holidays are receiving the same compensation, and that is not really what is meant by compensating people for working on public holidays.
So I think there should be a provision in there that says that there are rights to compensation for working on public holidays set out in the award and these cannot be overridden by agreement.

That is the most appropriate way of meeting that election commitment.

Senator SIEWERT—That leads me on to one final question.
This morning the Australian Minerals and Metals Association were talking about averaging hours but also talking about cashing out leave, and saying— these are my words of what they were saying—that essentially it discriminates against the resource sector because of the way they run their rosters.

Essentially they have got 26 weeks off and that partly takes in their annual leave, so they are recommending some changes to accommodate the resource sector.
Have you had a chance to look at that issue or have you heard of that issue being raised?

If so, what is your opinion?

Prof. Peetz—You are saying that they say if you are working an even time roster, which is where you work four days on and four days off or seven on and seven off, then that incorporates your annual leave.

Senator SIEWERT—Yes, because of the way that they have got time off, that incorporates some of their annual leave and therefore they should be able to cash out their annual leave.
By not being able to cash out your annual leave, they claim it prevents them from carrying out their rosters properly.

Prof. Peetz—I am a bit surprised by that.

I would have to do a bit more research into those rostering systems.

Senator SIEWERT—They use the Norwegian system, apparently.

That is a 12-hour shift which is the even time.

Prof. Peetz—You are talking specifically about offshore oil rigs?

Senator SIEWERT—Yes.


Prof. Peetz—So we are not talking about the mining sector as such, we are talking about offshore oil rigs.

Senator SIEWERT—Yes, although they are actually arguing it for the resource sector rather than just for the offshore petroleum sector.

Prof. Peetz—Okay.

I do not want to comment without checking out the facts a bit more.

Senator SIEWERT—Fair enough.

If you could take it on notice, that would be appreciated.

Prof. Peetz—Was that in their written submission?


Senator SIEWERT—It is in their written submission and we were talking about it this morning.

EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 61 Senator CAMERON—Professor Peetz, I have noticed some change of rhetoric this morning from the coalition: Work Choices is not now the Liberal or coalition policy; it was John Howard, and he has gone.
The other argument I have heard is that it was simply the no disadvantage test being removed that meant a compact with the Australian people had been removed, and that was the problem with Work Choices and why the Liberals were defeated at the last election.

You have done lots of research into Work Choices.

Was it simply the no disadvantage test or were there other issues involved?

Prof. Peetz—I will not comment on the first part of that question.
In relation to the second part, the analysis of the polling data and so on that I have seen suggests that there were a number of aspects of Work Choices that were opposed by a majority of people.

I think the two that were the most clinically damaging, I suppose, to put it bluntly, were the removal of the no disadvantage test that you referred to and the changes to the unfair dismissal laws.

But they were not the only aspects of the legislation that appeared to be not supported by the electorate.
There were other aspects, including the downgrading of collective bargaining and so on, that I think it is fair to say were not popular with voters either.

Without going into every individual aspect of it, because it is not really the nature of clinical research in that area to break it down in that way, I think it is fair to say that there were a number of aspects of the legislation that were not supported, but some of course had more salience than others in making people switch their votes, I guess.
Senator CAMERON—One of the other arguments that have been put here this morning is that the widening of bargaining to include matters pertaining to the union-employer relationship should be removed.

Do you have any comment on that?

Prof. Peetz—I said earlier that I thought the whole ‘matters pertaining’ is a bit of an intrusion on the relationship between employers and employees anyway.

If people want to reach an agreement that meets the minimum legislative standards they should be entitled to do so.
I do not think it is really appropriate for government to be saying that you cannot have in your agreement a provision that enables you to deal with greenhouse gas emissions—which might seem a bit obscure but you can imagine various situations in which it might be relevant—or one that enables you when there is dispute over what are ‘reasonable business grounds’ when a proposal for flexible working hours is rejected to have that dispute arbitrated.
There is a whole range of things where I think it is not really necessary for the government to be intervening in this way.

And nor is it necessary for the government to be saying, ‘You can’t have in your agreement matters about the relationship between the employer and the employee representatives.’ There is an even less strong case for doing that than there is for preventing people from reaching agreement about matters that do not pertain to that relationship at all.

Senator CAMERON—Thank you.


CHAIR—Senator Abetz, we have around 15 minutes to go.
Senator ABETZ—First of all, to assist you, Professor Peetz, but possibly, more importantly, Senator Crossin, I think what she is looking for is clause 351 of the bill, which is under chapter 3, ‘Rights and Responsibilities: General Protections.’ There, it states: (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of— and there is a whole list of things, which includes pregnancy.

That seems to be a general provision.


In clause 195 of the enterprise bargaining provisions, certain terms are not allowed to be included in the enterprise agreement if they are discriminatory, and one of those discriminatory terms is in fact pregnancy.

I would like to think there is coverage, but of course it is their bill, not ours.

But I do not think it has been overlooked.


Professor Peetz, the government tells us that they consulted widely in developing their policy and then in drafting the Fair Work Bill.

Were you part of those consultations?

Prof. Peetz—No.

Senator ABETZ—Did you make any submissions to the opposition and then the government in relation to the legislation?
Prof. Peetz—You may recall that the transition bill was introduced into the parliament around February or so of last year, maybe a bit earlier, and associated with that was the exposure draft of the National Employment Standards.

Submissions were invited on that.

I made a submission on that and some of the comments I make here reflect the fact that some of my submissions were ignored.

Senator ABETZ—Your ideas were not accepted; that is fair enough.
Can I thank you for the detail of the submission dealing with some interesting areas, such as those people who have disabled children and facing EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 62 Senate Tuesday, 27 January 2009 those sorts of circumstances.

I think it was a very interesting inclusion in your submission.

Given the time constraints, in relation to your submission on annual leave is it your suggestion that no annual leave should ever be able to be cashed out?

Prof. Peetz—No, it is not.


I am basically proposing putting some limits on it.

The idea that currently appears to be in the bill is that there are safeguards put in there to prevent excessive cashing out of annual leave, and that safeguard is that you basically have to have four weeks in the bank.
I suspect that reflected concern when the idea of cashing out was brought up again that there could be undue pressure partly by the employer to get employees to cash up but also because it is simply important for employees to make use of their annual leave.

We are in a society where there is an awful lot of hours of work being done and people do need to get their rest and part of that is taking annual leave.
If you do not take enough annual leave then eventually you will burn out and you will not be much good to either yourself, your partner or your employer.

Senator ABETZ—But if you wanted to, you could take your annual leave and work, let us say, for four weeks as a taxi driver, and potentially there would be nothing stopping you from doing that.

If you were so minded, what you are proposing would not necessarily protect against that, would it?

Prof. Peetz—Yes, that is right.


You cannot really stop people from taking second jobs.

You just have to draw the line somewhere.

The bill tries to draw the line in a particular spot.

I think you can draw it a bit more effectively somewhere else by putting a limit on how much leave can be cashed out in a year and putting a limit on how often it can be cashed out.
Senator ABETZ—In clause 36 of your submission, you say: The mere fact that cashing out of annual leave is now on the table for a national minimum standard … is an indication of how easily such standards can be eroded in a relatively short time.

I was reading that as your absolute opposition to the cashing out of annual leave.

You are just saying it is a matter of getting the balance right?
Prof. Peetz—In writing this submission I focused on areas where I think the bill can be improved, taking as a given the policy that went to the last election because that was really the core issue of the last election.

I think the government can claim that it has a mandate to do everything that is in Forward with Fairness and the Forward with Fairness implementation plan.

I am not particularly fond of cashing out of annual leave for the reasons I have stated.
I really think that people do need to be able to access their leave.

You need to be able to have a period of rest and recuperation.

But clearly there has been a decision made that cashing out should take place and therefore my questions are: ‘What is the best way of dealing with it?
What is the best way of making sure that it is done in a way that does not really undermine the working conditions of people to such an extent that they end up getting burnt out?’ Senator ABETZ—There are some people I know that headed to Western Australia and up north.

Their whole idea was to earn—I will not repeat their terminology—a substantial sum of money in as short a period of time as possible and then return to Tasmania.
They would have preferred to cash out the four weeks to the idea of taking annual leave.

They were there for a specific purpose for one, two or three years: to make a mint and then come back.

That was a definite proactive lifestyle choice that they wanted to pursue whereas, reading your submission, I daresay you would not consider that to be a desirable lifestyle pursuit by these people.
Prof. Peetz—Even if you are only doing it for one, two or three years that is still a long period of time and you have got to be aware that when a lot of people are heading off to work in the mines and so on in Western Australia a lot of the time they are not working even-time rosters.

They might be working 14/7 or 21/7.

I have spoken to people who basically worked 13/1 rosters, so they would work 13 days on and have one day off— that was their cycle.
Or they would work 21 days on and have seven days off.

These are 12-hour shifts—these are not eight-hour shifts—so this is working really very hard for long periods of time.

Twelve hours is really getting to the limit of what humans are capable of, particularly in those manual occupations.
I know academics and senators work longer hours than that at times, but it is still a big ask to put on people and so I think that the right to annual leave is really a requirement, and pretty important in that situation.

It is probably even more important for people who are working 21/7 on a 12-day roster than for other people.

Senator ABETZ—Your submission talks about public holidays.
Just so I understand this, are you saying that if there is an award that just averages out what your public holiday pay might otherwise be into your normal weekly pay, then that is not sufficient?

I understand that sort of system was started in South Australia within the retail sector, where the union agreed to have that in an award—I think it was a couple of decades EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Tuesday, 27 January 2009 Senate EEWR 63 ago.
I know that journalists have that as well as part of their union arranged agreement—if they have to work on a public holiday they do not get paid any extra for that particular day, but the overall wage negotiation was such that it got factored in.

Are you saying that it is good enough just to factor it into the actual wage or should there be something specific for working on that particular day?
Prof. Peetz—The policy that went to the election said: Where an employee works on a public holiday, they will be entitled to an appropriate penalty rate of pay or other compensation.

This will be set out in the applicable award.

What I am saying is that however the award deals with the issue of compensation, that is a matter for Fair Work Australia in the light of all the evidence presented to it et cetera.

But that should not be able to be contracted out through an enterprise agreement.
If the awards contain the provisions that you have described, and Fair Work Australia considers they represent adequate compensation, then so be it.

I am saying that the issue of compensation for public holidays should be set out in the awards.

Whatever is in the award should not be able to be contracted out in relation to compensation for public holidays.

Senator ABETZ—I think I might have to look at the Hansard to follow all that.
It seems to me that unions have in fact been at the forefront of negotiating these sorts of agreements with employers on a mutually satisfactory basis so that there isn’t any incentive to work on a public holiday.

If you talk to casuals that work at Woolworths and Coles you find that because of the penalties that apply there is an absolute rush, and they often roster people on for four-hour slots so that everybody gets their fair share of the extra pay that is available on a public holiday.
Of course, that runs contrary to the argument that people should not have to work on a public holiday so that they can enjoy time with their families.

There is in fact an incentive for them to work on a public holiday because there is more money involved.

Do you want to comment on that as a real- life experience?

Prof. Peetz—My position here is, basically, that what is in the award in relation to compensation for public holidays should apply to people whether or not they are on an enterprise agreement.
If the award contains those provisions you described then that is the relevant provision.

I am not suggesting going back and unravelling the awards in that area.

Senator ABETZ—I move to the application for unfair dismissal remedy.

Is it your understanding that under the previous regime it was 21 days to lodge an application for an unfair dismissal remedy?

Prof. Peetz—That is my understanding.

Senator ABETZ—And that has now been contracted to only seven days.

Prof. Peetz—Yes.
Prof. Peetz—Yes.

Senator ABETZ—Thank you for that.

I take you to your section on pattern bargaining.

You indicate that to the best of your knowledge the provision for the prohibition of that is unique internationally.

There has been some suggestion that that may be in breach of the ILO conventions et cetera.

Is that an area that you have explored, or not?

Prof. Peetz—I think there is a real issue there.


As to whether it is in breach of the convention is a bit hard for me to tell—in part because, as I said, I am not a lawyer.

The issue of international law in this area is not my specialty.

It would not surprise me if it was in breach of the convention.
I will put it this way: generally speaking, when you are talking about pattern bargaining, the term ‘pattern bargaining’ means a process whereby early agreements set the benchmark for agreements that follow on.

That is basically what happens in a lot of enterprise-bargaining based systems.

In Japan, for example, the unions that get up the early wage agreements in the annual spring wage round set the benchmark for what happens down the track.
It is not really viable or realistic to try to prevent that sort of thing, and if you did try to prevent it it would have to be in breach of ILO conventions.

The way pattern bargaining is defined in the legislation is somewhat narrower than that.
From reading through it, and reading through the transcript of the first of these sessions when you had the officials of the department here, I thought that it seemed very much dependent upon whether the union was seeking to negotiate or willing to negotiate an agreement that was relevant to the circumstances of the enterprise.

To me that is more an issue of good faith bargaining than anything else.
It seems a bit odd to me that it is being dealt with in this way, and I think it would probably be more sensible to deal with it more directly through the good faith bargaining provisions.
EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS EEWR 64 Senate Tuesday, 27 January 2009 It seems to be a matter that is more or less settled, but I do wish to draw the attention of the committee to a potential inconsistency with equal remuneration provisions, where a group of women may seek to get a wage claim saying, ‘We want to be paid the same as the men who are doing the same work down the road.’ I do not think that that should be prohibited under law.
I think the legislation should at least specifically exclude those sorts of claims, where women are basically seeking to get the same pay as the men down the road who are doing the same work.

Senator ABETZ—But a cast-iron guarantee was given before the last election that pattern bargaining would not be allowed.
Prof. Peetz—Yes, but what I am really talking about here is how pattern bargaining is defined, and such a claim should not be defined as pattern bargaining because it is really seeking to get equal pay for work of equal value.

Senator ABETZ—Yes.

Well, it is for the Labor Party to justify what they said and what they meant by it.

I will quickly finish on the issue that I complimented you on, and that is the suggestion about people who have disabled children, where you draw on the UK experience.
Without becoming too bureaucratic, is there some definition, test or whatever that is accepted in the United Kingdom for the purposes of determining who is a disabled child?

Age is easy to determine; you find out what the birth date is and then there is an objective assessment and test.

What makes one a ‘disabled child’ for the purposes of the UK legislation?

Are you aware of that?

Prof. Peetz—I cannot tell you off the top of my head.
Senator ABETZ—I might have to ask the Parliamentary Library to have a look about for me.

Prof. Peetz—Yes.

Bear in mind that we are only talking here about a right to request.

It is not a right to actually have the flexible working hours; it is a right to request it.

I would not want to encourage people to get bogged down in definitions of exactly what is a ‘disabled child’, and there would be definitions in Australian law as well.

Senator ABETZ—But, unfortunately, we will.


If we were to adopt this, I think we would have to have some sort of workable definition.

It is just like you were saying before: what are reasonable grounds for employers to argue that there is a business imperative in certain circumstances?

Rather than just saying ‘a business imperative’, you were arguing that it should be defined so that there is some certainty— Prof. Peetz—Yes.
Senator ABETZ—I think that it would help both sides, if we were to go down that track, if there were some certainty.

But thank you for that and thank you for your forbearance, Chair.

Prof. Peetz—I will have a look at what we have got in Australia about that and what would be an appropriate definition.

Senator ABETZ—That would be good.

Thank you.


CHAIR—Thank you for your presentation to the committee today and for your offer to take a number of those questions on notice and come back to the committee with the answers.

Thank you, Professor Peetz.

The committee stands adjourned.

Committee adjourned at 3.38 pm EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS