Equal Opportunity Bill: government plays politics with bad law

Hansard: 3 May 2007 ASSEMBLY

Mr CLARK (Box Hill) — The opposition opposes this bill. It is yet another stunt from the Bracks government that is being introduced not to benefit Victorians but as a platform for spurious political attacks on the commonwealth government in the context of an impending federal election.

The bill purports to create a new prohibition on discrimination on the grounds of what it describes as ’employment activity’, which it refers to as employees seeking information about or querying their employment conditions or entitlements.

It defines ’employment activity’ as an employee making a reasonable request for information about employment entitlements or communicating concern that the employee has not or will not be given some or all of their entitlements. It defines ’employment entitlements’ as an employee’s rights and entitlements under a contract of service, a contract for services or a Victorian or commonwealth act. It then includes employment activities as a new attribute on the basis of which discrimination is prohibited. Of course if there is prohibited discrimination, it can then trigger all the mechanisms in the Equal Opportunity Act, including compulsory conciliation and a hearing before VCAT (Victorian Civil and Administrative Tribunal).

There is absolutely no debate about the fact that employers should not discriminate against employees who ask questions about their entitlements or even express concern about their entitlements. But then again no sensible employer would discriminate in that way.

For an employer, keeping the goodwill of their good employees is vital for the success of their business. That is particularly the case when, thanks to the Howard government, we have one of the lowest unemployment rates for decades and where every second shop down the high street has a ‘Help wanted’ sign in the window.

If you wanted to base antidiscrimination legislation on hypothetical grounds of discrimination, you would end up with a list as long as your arm. If you are going to include this as a ground of prohibited discrimination, why do you not prohibit discrimination on the grounds of an employee expressing concern about the purchasing policies of the business or about the sorts of jobs that the business tenders for, or even on the grounds of what football team the employee might barrack for?

You do not include that myriad of hypothetical grounds of discrimination in legislation, because there is no evidence that there is any serious level of problem that requires legislation — and that is exactly the case here. There has been no case made or evidence provided of any widespread problem about employees who might ask questions or express concern about their entitlements. No doubt if the government or the unions put enough effort into it, and if they look hard enough, they will be able to fine someone who claims such discrimination. You could probably do the same with all the other possible grounds of hypothetical discrimination that I have mentioned, but that does not mean there is a need to legislate in this case, just as there is not a need in those other cases.

I point out to the house in relation to this proposed head of discrimination that it is something that not even federal Labor, when it was in government, ever felt the need to cover when it had the capacity to determine the commonwealth’s IR (industrial relations) laws and set the IR agenda. The WorkChoices legislation specifically requires pay slips to be provided to employees within one day of each payment of wages.

This is a spurious problem of Labor’s invention for base political motives. It comes in the context of a wide range of other hysterical claims that have been made by Labor luminaries in the past, all of which have come to naught, just as this alleged claim of a serious problem amounts to naught.

Let us have a look at what these Labor luminaries were predicting was going to happen when the Howard government’s reforms started on 27 March last year.

We had Kim Beazley, the then Leader of the Opposition saying, ‘There will be more divorce’. We had Bill Shorten, that rising star of the Labor Party, saying it was going to be ‘a green light for mass sackings’. We had Kim Beazley again saying, ‘Democracy is threatened’. We had Tony Upton of the TWU (Transport Workers Union) saying, ‘This legislation is a direct threat to road safety in this country’. We had Sharan Burrow saying children will not see their parents for Christmas, and to cap it off we had Bill Ludwig, national president of the Australian Workers Union, saying our children would be going to school with bare feet because parents could not afford shoes.

These were the predictions that were coming out of the leading lights of the Labor Party when the Howard government’s reforms were introduced, but none of them has come to pass. Far from fulfilling any of these dire predictions, the Howard government’s reform agenda has brought remarkable benefits to Australian families and the Australian economy. Real wages have risen by 19.7 per cent under the Howard government compared with a 1.7 per cent fall under the Hawke and Keating governments. Unemployment nationally is the lowest it has been for years — 4.5 per cent now, compared with 8 per cent 10 years ago. Industrial disputes are at their lowest level since records began back in 1913. Long-term unemployment — the number of people having ongoing difficulties finding a job — has been reduced by 76 per cent from a peak of 329 800 in May 1993 to just 76 000 today.

Last but certainly not least for Victoria, the lawlessness and thuggery that prevailed in the Victorian building industry for decades has finally been curbed through the establishment of the Australian Building and Construction Commission, which has removed an enormous cost penalty that the Victorian economy and Victorians generally have previously had to bear.

Despite all of this, despite the fact that more and more people are finding more and better paid jobs and that most employees are now in the box seat when it comes to negotiating with their employers, our Minister for Industrial Relations is making similar hysterical and politically motivated attacks on the Howard government’s reforms and coming into this house with these trumped-up allegations of widespread problems when no such problems exist.

If we are seriously going to talk about laws which need to be introduced to protect employers and employees, what about a law that protects employers and employees from discrimination by bullying industrial relations ministers, when employers seek to lawfully sit down and negotiate industrial agreements with their employees? Or what about a law that protects employers against discrimination by federal shadow industrial relations ministers who threaten that employers will be injured if they dare to point out the flaws in federal Labor’s proposed rigid, centralised and union-dominated 1950s-style industrial relations policy — a policy that would cause so much damage to the national productivity and the living standards of working Australians?

But the case against this bill is not just that it is unnecessary and based on spurious grounds; the case against this bill is that it would cause serious problems to Victorian employers, to the Victorian economy and to jobs and living standards.

To start off, this cuts right across the single system of commonwealth regulation of industrial relations, which the Bracks government purports to support, and which I understand is now supported also by the federal Labor side of politics.

This is a problem not just under the current employment regime, it is a problem under any future commonwealth employment regime. The reasons why people have now almost universally come to support a single system of commonwealth regulation of industrial relations is that it promotes the efficiency of the national economy, it removes duplication and it makes it a lot easier to have one set of laws applying across the whole nation, and of course that flows through to productivity and therefore to employment and living standards. This bill is yet another element in moves by state governments that are undermining this single system of commonwealth regulation.

This bill, as I mentioned earlier, creates a new prohibition that has never previously existed, including never previously existing under federal Labor industrial relations legislation. It is creating a new regulatory burden on employers who are going to face overlapping systems of industrial relations rules. Perhaps even worse, it reinstates by the back door a form of unfair dismissal claim that has been the bane of thousands of small businesses across the state. The removal of that by the Howard government has won almost universal applause from businesses and has made it so much easier and so much less stressful for small businesses to take a punt on putting someone else on the books, because it has reduced the risk that they are going to be hamstrung with an unfair dismissal claim.

However, this legislation in a sense goes even further than the so-called unfair dismissal regime because it creates an unfair treatment regime.

An employee can allege and can easily set up the circumstances in which they make a protest or ask a question or seek information from an employer about their employment entitlements. They can do that if they are expecting that they may face action from an employer because of poor work practices or any other failings, and they can then set themselves up for an unfair treatment claim as grounded by this bill.

It is an open-ended and vague definition. It is something that is easy to assert and something that is hard to rebut. There are also huge process costs inflicted on employers, because if a claim is lodged under the mechanism of this legislation, it can be taken into compulsory conciliation. The small business owner will be dragged out of his or her business to attend a session with the compulsory conciliator and has to produce whatever documents the conciliator demands. All of that has to be pored over in a conciliation session, and potentially the same process will be repeated at the Victorian Civil and Administrative Tribunal. It is an enormous cost on an employer — and of course that is well known.

It is just like the ability to claim against small businesses for unfair dismissal, which thankfully has been removed under commonwealth legislation. This bill if enacted will see employers potentially blackmailed into paying go-away money to spurious claimants in order to simply settle a claim and enable them to get back to their business and create prosperity and employment.

On top of that, this measure is going to cut across existing dispute resolution procedures that are already included in many industrial agreements — in AWAs (Australian workplace agreements) and in collective agreements, including union collective agreements.

There will be a negotiated and agreed dispute resolution procedure which can be triggered, but on top of that there will be a potential for a left-field claim to be lodged on the basis of alleged discrimination, which is going to totally cut across that dispute resolution procedure which has been agreed to between parties.

This measure in the bill is the first head that has been included in the Equal Opportunity Act that goes to a core industrial relations matter. Discrimination is prohibited in the workplace on a whole range of criteria, but this is the first criterion that is being inserted into the act that relates specifically to an industrial relations matter. The only one that comes close at present is the prohibition of discrimination in relation to taking industrial activity, but that is a discrete area which is an adjunct to the prohibition of discrimination on political grounds.

This is the first measure that gets down to the nitty-gritty of day-to-day industrial relations-type matters and therefore creates a duplication of the federal regime which I have already referred to.

This legislation is not only going to apply to employees, it is going to apply to independent contractors. In that respect it is part of Labor’s ongoing agenda to try to undermine independent contractors, to force them into being treated as employees and pressure them into joining unions. If there is any dispute about that, you just have to look at the definitions of employee and employer in section 4 of the principal act. An employee includes a person engaged under a contract for services, and an employer includes a person who engages another person under a contract for services.

The definition of ’employment entitlements’ being inserted by the bill says that in relation to an employee — which of course can, as I have already pointed out, include an independent contractor — it means the employee’s rights and entitlements under an applicable contract of service.

Thus this bill will not only deal with employment relationships but also apply to a whole range of independent contractors who provide services under contracts whenever there is a dispute about invoices or billing involved under that contract. This is an entirely open-ended and unnecessary imposition on existing relationships.

We have seen Labor’s form in the past in terms of these trumped-up allegations and its interventions into the industrial relations arena. We have seen how it uses them as a platform for politically motivated campaigns and as a justification for intrusion into workplaces.

The budget papers, which were released on Tuesday, show that this is yet again Labor’s intention in relation to this bill. Just like the misuse and abuse going on with the workplace rights advocate, if members look at page 313 of budget paper 3, they will see that $200 000 per annum has been allocated in additional funding to the Equal Opportunity Commission. Page 314 of budget paper 3 states explicitly that:

The Equal Opportunity Commission will also investigate and report on discrimination against workers.

It is clear that the government’s intention is to have additional staff at the Equal Opportunity Commission beating the political drum and drumming up allegations and reports which the government will use as part of a politically motivated campaign in the run-up to the federal election.

It is not just the Liberal Party that has made this point; it is something that is causing serious concern to employer organisations at the highest level. I refer to the lead article in the Australian Chamber of Commerce and Industry’s Review of March 2007, which is entitled ‘State government responses to WorkChoices are damaging industry’. It says:

The High Court’s WorkChoices decision in November 2006 provided a real opportunity for all governments to put their energy into making a national industrial relations system a reality. So far, most state and territory governments have spurned that opportunity, and instead introduced new employment and workplace laws to try to counteract the reach of WorkChoices. Viewed as a whole, these piecemeal changes comprise a significant body of new employment regulation in Australia, on top of WorkChoices. While these state government initiatives have tended to pass ‘under the radar’, they deserve greater public scrutiny.

It is well understood that the Australian government WorkChoices workplace reforms are opposed by the labour movement, which has promised to ‘tear them up’.

However, what is not quite so visible are the regulatory, administrative and legal steps that state and territory governments are taking to wind back workplace reform and undermine WorkChoices. In doing so, they have spent millions of taxpayer dollars for little gain, and have weakened their position in Australia’s ongoing federalism debate. Employers are being caught in the middle of this political fight — with new and legally questionable state workplace regulation being imposed on industry.

The chamber of commerce went on to make this particularly telling point:

These state and territory government strategies do not appear to be random, or developed at low levels of government. The signs are that they are well coordinated and planned at ministerial or head of government level. At the February 2007 meeting of the Council for the Australian Federation (a body that excludes the commonwealth), state and territory premiers and chief ministers discussed a report on industrial relations strategy.

Although this was widely reported in the media before the meeting, the wide-ranging communique issued after the meeting made no reference to this agenda item.

And you wonder why not. You wonder what they were plotting behind closed doors, and you wonder what tick-tacking there has been to precipitate this legislation and a rash of similar legislation in other jurisdictions.

The article says under the heading ‘Retaliating with new workplace laws:

For employers and small business, the most concerning aspect of the state and territory response to WorkChoices has been complications created by a wave of new state workplace regulation …

It then canvasses the problems that are being caused in various jurisdictions.

It talks in particular about Victoria under the heading ‘Creating new bureaucracies’:

These new state laws are also accompanied by duplicate bureaucracies for their monitoring and enforcement.

Later it says:

In addition, some states have also established (or plan to establish) new stand-alone statutory bodies to monitor, investigate, comment upon and analyse the operations of WorkChoices, such as workplace rights advocates. These are contentious roles which inevitably draw public servants or publicly funded officials into the national policy debate.

In the past, public servants would provide advice to governments and ministers. These new bureaucracies see public officials themselves seeking and attracting attention as public commentators on contentious issues.

The ACCI (Australian Chamber of Commerce and Industry) article makes the point with remarkable restraint. It is clearly saying that governments are politicising public sector employees and sending them out on political mischief on behalf of their governmental masters. That is not only bad in itself, it is compromising the practices of public service impartiality that have applied in Australia and have been generally a supported part of a capable and politically impartial public service. Of course we have seen it in particular with the abuse of the role of the workplace rights advocate here in Victoria, as has been raised in this place and elsewhere recently. We have every reason to expect that it is the intention of the minister to achieve a similar result with this legislation.

The ACCI article to which I have referred was issued in March and written prior to the current bill becoming public. But ACCI also specifically addressed this bill in a circular to employees dated 24 April 2007. In the summary box at the beginning the circular says:

There have been further measures taken by various state governments to legislate and create unnecessary duplication in industrial regulation for businesses where those businesses are already subject to WorkChoices.

It canvasses a number of such measures and refers in particular to the Victorian antidiscrimination amendments. It outlines the bill that we are currently debating and assesses it by saying:

The amendment to the antidiscrimination legislation is an example of creating unnecessary duplication in rights and responsibilities by exploiting section 16 of the WorkChoices.

Not only do we have the ACCI making clear the inherent problems for employers and therefore for employment, productivity and living standards in this state, but we also have the ACCI blowing the whistle on the fact that this legislation, and similar legislation in other states, is part of an orchestrated campaign across the Labor states that was cooked up at one of the Council for the Australian Federation meetings and is now being inflicted on Victorians at taxpayers expense. I would like to congratulate the ACCI and those other employer groups and individual employees who are standing up and making clear their position on state and federal Labor’s industrial relations agenda, despite the threats and bullying of federal shadow ministers and state industrial relations ministers.

The Liberal Party will strongly oppose this bill, because it undermines the single national system of industrial regulation, puts new and unnecessary regulatory burdens on all employers, and reimposes on small business a form of unfair dismissal claim by the back door, thus threatening the hard-won improvements in productivity, job creation and living standards that Australian families have enjoyed in recent years.