Speech to Fair Work Summit May 17th 2010
The organizers of this Conference are to be congratulated for the opportunity afforded to us to undertake a stock take of the Fair Work regime.
I note that no-one from the Government will be contributing - it seems that Ms Gillard is most anxious to talk about the non-existent/dead WorkChoices rather than an analysis of her own system which bears a lot of Labor's and her own personal iconic hallmarks - rushed and the victim of overpromising and under delivering.
And let's not forget the promise
"No worker will be worse off". 10's of 100's of workers are worse off! And to combat this & we see the ACTU embarking on a wasteful campaign against the dead WorkChoices.
I have a simple message for Ms Gillard and the ACTU - Australians and Australian workers are not interested in 2007 but in 2010 and beyond.
And desperate attempts to run a scare campaign against WorkChoices won't alleviate the plight of workers in 2010 or & over the legacy of broken promises.
Australian workers are interested in our plans for the future, not the mistakes of the past.
It would be just as churlish for us to remind Australians of Ms Gillard's spectacular double disaster in the 2004 election - No.1 ticket holder of the Mark Latham & club and the architect of the health debacle of all time - Medicare Gold.
But unlike the Coalition that has said WorkChoices was a mistake, Ms Gillard has still been unable to admit the error of her ways - poor judgment of character and poor judgment in policy - a real double whammy!!
The negative advertising on Latham and Medicare Gold worked a treat in 2004 as did the negative campaign against WorkChoices in 2007. Neither will be successful in 2010.
The Australian people are interested in the here and now and the future - not a rehash of the past.
So lets turn to the here and now.
The Modern Award system is not modern. It is a slapping together and forced amalgamations of a number of awards into a lesser number of national awards in a timeframe which has meant no genuine modernization process actually took place.
Rather the are a shoehorned conglomeration of 122 Awards. No magic in the number but you need to be a wizard to sort out the & confusion amongst workers and employers alike.
I don't blame the AIRC. They had an impossible task. As the former President of the AIRC indicated it was impossible to undertake the task and not leave both workers and employers worse off - and that is exactly what has happened.
Workers are not only losing pay - they are losing other conditions as well.
On the other hand, some workers are &.considerably - at the expense of their employers.
Let's examine this more closely.
I had a communication from a lady whose new deal under the Modern Award will strip away 15 paid family leave days per year. This was vital to this lady and her fellow workers who quite unashamedly had negotiated this arrangement because they wanted a family/work balance. Not a work/family balance - for them family came first.
But consider the employer who is being confronted with a take home pay order.
Sounds fair and reasonable - and I agree - no workers should have to face a diminution of their take home pay as they do under Labor.
So the existing enterprise has to keep paying its workers at the old rate - above the Modern Award rate. Sounds fair.
But what does the existing enterprise do when a new business starts and legitimately pays at the lower new Modern Award rate and as a result undercuts?
Pity, Ms Gillard in her haste didn't think of that obvious injustice.
It's unfair, unreasonable and in direct breach of the election promise made - that no employer would be worse off.
But as to these new awards being modern?
There is nothing modern about amalgamating completely unrelated awards without considering the consequences.
Take for example - dentistry and art therapy. In the same award.
Very helpful for the art therapist who has a dental practice on the side.
But seriously - the Government is asking dentists to be good citizens and open longer and at weekends.
Their schedule of fees and rebates are such that their charges are the same irrespective of when they undertake their handiwork of & But the staff will be paid more. So the only person to be paid less for opening on a weekend - is the dentist who has a work/life balance consideration as well. I don't think they will be rushing to open weekends so they can be paid less than they earn 9-5 weekdays. Another factor not taken into account.
There is no magic in having 122 Awards. And I trust some sanity will prevail in due course. National Awards across a particular field makes good sense - a process that the Coalition started and supported.
But forcing a host of discreet and separate sectors with different needs into a single award is not helpful.
I'm sure we have all woken up in the morning and stumbled out of bed - gone straight to the phone to see if the art therapist was open!
I just think a degree of commonsense would help.
As to the theme of 'Modern- Awards' I notice in the Building Award workers are given extra benefits if they lay bricks in a Tuberculosis ward or hospital. The Award .. unfortunately failed to acknowledge that the last such facility closed its doors some 30 years ago in 1981.
Or the requirement of an employer to provide a wheelbarrow with a rubber and pneumatic tyre in a particular situation. Really! How modern. How innovative.
All we have actually witnessed is the wholesale importation of clauses from old stale awards into the new ones. But calling them 'Modern- Awards' doesn't make them modern, let alone remove the old and the stale clauses that are still contained in them.
And in fairness - the timetable may not have allowed the AIRC to deal with these issues as they should have. But Ms Gillard and Labor need to take the blame for this - they set the timetable!
The problems with FWA not being able to provide advice, let alone timely advice, is another symptom of the rushed nature of Ms Gillard's approach.
When employers aren't given an answer or are told to seek legal advice, you know its clearly not a 'simpler' system.
And when the FWO had to have three goes before they got their breach letter right, one wonders why the benefit of three goes to get it right given to the FWO is not extended by the FWO to the small business.
And from small business to the larger employers.
The BUPA Care highlights a real problem.
1600 workers - 2 unions - and the employer all agree but FWA bowls the agreement over.
I understand a similar thing has happened with a McDonalds agreement.
It seems workers don't know what's good for them, Unions don't know what's good for workers, employers don't know what's good for them - so thank goodness we have got Ms Gillard's straight jacket - all knowing laws to frustrate the aspirations of Australian workers, Australian unions and Australian employers.
But an agreement like TMS and the MUA is allowed although there is no productivity offset or gain for what can only be described as a massive rise in wages obtained through unconscionable tactics.
The rushed regulations dealing with Take Home Pay Orders - 16 days after Ms Gillard made one of these Ruddesque sweeping statements - 'The Fair Work Act is working as expected and we have no plan to change the law'. (at least that promise lasted for 16 days so she deserves some credit).
In the face of this mess combined with 4 deaths courtesy of the Pink Batt scandal, the ACTU is more anxious to re-live 2007 rather than deal with the issues of the here and now.
Re-call Ms Burrow caught on tape saying in relation to WorkChoices "I need a mum or dad of someone who's been seriously injured or killed .That would be fantastic".
Hideous, cynical and indeed repulsive comments. As the saying goes 'be careful what you wish for'. Happens - Ms Burrow never got such a horrific outcome under the Coalition.
But she has under Labor - not 'a' ... '... examples. Yet strangely no campaign.
Which makes her words all the more hideous, the more cynical and the more repulsive.
And might I add - the scheme which killed these people was specifically rejected by us whilst in Government.
Enough on the present, the here and now suffice to say, Ms Gillard in a rare first has had the unique capacity to breach her election promise to both workers and employers and upset them both.
Although the unions are relatively quiet - and just in case you are wondering why the unions may be so quiet, well they just got another $10 million worth of our taxes in the Budget the other night.
And talking of Budgets, I note how the Unions are embracing a big new tax which will impact severely on employment opportunities and wages. But that's another topic.
So, what of the future under a Coalition?
Last Thursday in his budget reply speech, the Leader of the Opposition, Tony Abbott, gave a broad direction of the industrial relations policies we will be taking to the election. Not a revolution, not even reform - rather a tweaking of the existing Fair Work Act.
He talked about changes to unfair dismissal laws and the necessity for changes to some of Labor's own employment instruments, such as ITEA's and IFA's.
I'll be having more to say about the detail of our policies prior to the election, but today I do want to address the false claims being made about what these policy direction statements actually mean.
Ms Gillard and the unions are already verballing Mr Abbott on what he said, and are continuing to falsely assert that we will bring back Workchoices.
We won't reintroduce individual statutory contracts.
What we will do is give workers the power to make decisions about how they are employed, without forcing them into a particular one-size-fits-all arrangement.
It is clear that there are a number of problems with the instruments that Labor has created in the Fair Work Act.
It might be suggested that ITEA's, for example, were designed to be a bridge between the previous system of individual contracts and the FW Act's system of union dictated collective agreements.
We know that the strategy for unions is to force those people off ITEA's and on to a union agreement. And those workers who wish to do so are of course free to do so.
But this path should not be their only option. Those who want to work innovatively in order to make a go of it and get ahead, deserve to have other options available to them. Same with those who have other considerations - like family or carer responsibilities.
For example, Labor's other individual arrangements - individual flexibility agreements - are a step in the right direction.
IFA's sound good in theory and Ms Gillard promised that they would provide an option for workers and managers who wanted to work in a manner distinct from the one-size-fits-all approach that Labor holds so dear.
But like so many of Labor's promises, the practical reality is very different. Stakeholders and workplaces I have spoken to indicate that they are rarely being used. They are so regulated and stifled that it is simply not worth the trouble.
We even saw, in 2009, unions in Victoria taking employees on strike for four days to force an employer to agree to a restriction on the use of IFA's.
This is not good enough.
Not good enough for aspirational workers and not good enough for employers.
Like me, many of you would view yourself as an individual. You work differently to your colleagues at your own workplace, differently to your rival workplaces and differently to workplaces outside of your industry.
In my own office, for example, I have workers who start as early as 4am in the morning - the early birds - who I note are also the people who are my IR advisers! (guess who provided that line). I have others that finish at midnight but in case anyone from the Government is listening I'm not going to detail the complete extent to which we are able to watch them - needless to say that we are.
And I am sure that many of you would have seen blue collar workplaces in Western Sydney where the bell rings and everyone trudges off for morning tea or for lunch. Then the bell rings and they return.
Now this system of one-size-fits-all workplace rules might suit a particular factory, but would they suit your own respective workplaces? Would anyone working here in the CBD of Sydney like to work under such a rigid set of rules?
Like me, you probably eat lunch anywhere between 11am to 3pm and probably at your desk. Or, like some of my staff, you might have a diet consisting solely of caffeine which requires a fix on an hourly basis necessitating leaving your desk for five minutes - (that's my line!).
You might want to start early some days to avoid traffic or get the early bird car parking rate, or drop the kids to school. You might want to leave early on a Friday afternoon and work back Thursday night to make up for it.
We all work differently - even within the same workplace - so the question that the Coalition will ask the Australian people is this; what is wrong with having laws that accommodate the different needs of individual workers?
What is wrong with being able to accommodate the personal needs and wants of some workers? Particularly for those workers who want to get ahead or have special needs.
Why do we have a system designed to discourage and penalise innovation yet reward mediocrity and sameness?
I heard Senator Arbib on Lateline last Friday night make this comment - "when people hear flexibility, they know that it means AWA's". If that is so - why does Labor have in its regime Individual Flexibility Agreements? Does it really mean AWA's? Or why is the 2nd of the ten NES the right to request flexible working arrangements. But think for a moment - he made this comment, in the capacity of his job, at 10.30pm at night! Does this mean Mark Arbib is employed on an AWA?
And does this mean his media adviser, who would have been with him in the studio, is also employed on an AWA? Of course not.
But it does show that in some jobs, there is a need to work hours that are outside of the union dictated 9 to 5 one-size-fits-all.
Sharran Burrow recently said that the ACTU would fight against any system that allowed managers to dictate hours of work to employees! So where was tshe ACTU when I exposed Mr Rudd forcing Treasury staff to work 37 hours straight on the Fuelwatch debate? But I hope they do succeed - because the ABC's Q&A on Monday nights would become a bit more balanced as only Coalition MP's would ever attend the studio. Perhaps not a bad thing.
But Channel 9 would never be able to require Ray Warren to provide commentary for the Friday Night NRL football game, nor would Channel 7 be able to require Sam Newman to appear on the AFL Footy Show -perhaps I'm arguing against myself here.
All humour aside, what if a hospital wanted to ask nurses to work a night shift? Or if the NSW R&T Authority required workers to fix a pothole on the Harbour Bridge at midnight rather than during peak hour?
Who here has ever been in a nightclub or pub after hours? I know Mr Rudd has. Or caught the train home afterwards? Or stopped along the way home to get McDonalds, or dare I say it, a kebab?
I have no doubt many of you would have, and this is because employers had staff who were required to work at those times.
And it is the needs and wishes of those work places that our system must accommodate. A system must be capable of listening to what people need - not dictating to people what Ms Gillard thinks they need.
So within our system there must be a balance and degree of common sense.
And striving for this is what a Coalition Government will do. And this is what Tony Abbott alluded to during the Budget In Reply. And there is nothing wrong with doing so in a manner that is fair and sensible. Our system must provide options as, contrary to what Ms Gillard, Senator Arbib and Sharran Burrow believe, the year is 2010 - not 1970.
Our policy will also deal with the area of unfair dismissal.
But it will deal with it in a way that strikes a balance between providing recourse for workers who are unfairly treated and the need to recognise that the employment relationship is different in small workplaces.
A plumber with two employees gets his hands just as dirty as those workers that they employ. They are colleagues - not boss and worker.
Very often the café owner makes just as many coffees and cleans as many tables as the staff.
The nature and importance of these relationships in these types of workplaces differ from those between the CEO of a bank and the tellers in branches. There is a significant distinction.
Again, our system must recognise this distinction to encourage growth and create jobs. I am quite certain that each week there are more cafes which open their doors for the first time than there are banks.
New enterprise creates new opportunities for jobs and growth and this must be encouraged - not stifled.
And we should also not forget, as I am sure those attending today will know, that the Fair Work general protection provisions create a whole new area of recourse for workers treated unfairly.
But as I mentioned earlier, our policy will contain details on the approach of the Coalition and this will be revealed in due course.
What I will say is that our vision is one that is underpinned by the notion of common sense.
It is one that recognises that the circumstances of workers in metal prefabrication workshops in Blacktown are different to a hotel worker in Cairns which are different again to a dental assistant in my home State of Tasmania.
I wish you an enjoyable and informative Conference.