The Government’s new workplace laws are now in operation, but the debate is far from over.
Employers keen to take advantage of their new freedom to hire and fire have already run into criticism for allegedly unfair dismissals, pay cuts, and reductions in working conditions.
But Workplace Relations Minister, Kevin Andrews, says these are just teething problems, and that ultimately the new laws will result in greater productivity and prosperity all round. The ALP has promised to scrap the laws should they gain power, and recent polls show that the issue is starting to bite in marginal seats.
Insight has uncovered an alarming story of workers paid as little as fifty dollars a month, working twelve hours a day. And there’s the case of a group of workers seriously injured at work who were then fired without notice.
Representing the Government and employers in 'YOU'RE FIRED!' are Kevin Andrews, Garry Brack, Peter Anderson and Nicholas Wilson, Director of the Office of Workplace Services.
For the Opposition and employees – Steven Smith and Bill Shorten will be joined by former Industrial Relations Commission judge Paul Munro.
JENNY BROCKIE: Tonight, the Minister is here and Insight will talk to workers and employers with first-hand experience of the new legislation. But first, Amanda Collinge from Melbourne with a story that's shaping up as a test case.
THE TRIANGLE CABLES STORY:
REPORTER: Amanda Collinge
Triangle Cables is a multinational company with offices in the Middle East, Asia and the UK. It makes a variety of cables for industrial and marine markets. These men were all long-term employees, some with the company for 13 years. The day after the new workplace laws were introduced, eight of them were sacked without notice or reason.
MICHAEL FORTELNY: They called me into the office, handed me an envelope and told me my services were no longer required.
REPORTER: So what was the reason given for sacking you?
MICHAEL FORTELNY: My services were no longer required.
REPORTER: That was it?
MICHAEL FORTELNY: That was it.
REPORTER: No reason?
MICHAEL FORTELNY: No reason, I asked them three times.
The Michael Fortelney family is doing their best to keep his spirits up. He has a huge mortgage on the family home he bought last year and his wife and children are now afraid they'll lose the house.
FILIZ FORTELNY: They were concerned about him, they were worried about him. He's got a heart condition. They were worried about the mortgage that we have. They were worried that, “Mum, you going to sell the house now? Mum, are you going to be able to manage on your own?”
Triangle Cables is now under scrutiny from the Government's new workplace inspector. The National Union of Workers alleges the men were sacked because they're union members and took part in a one-hour strike last year. They're now taking the company to court.
MICHAEL FORTELNY: Why else would he sack us? I've had 18 years experience in the cable industry. Two reasons why he sacked me – because of WorkCover and because I was a union rep.
REPORTER: Because, you know – I'm sure you know this – that a lot of employers are saying, “Look, sackings go on every day, that's part of everyday workplace reality and, you know, we have to restructure and this is all part of productivity and it's just a coincidence that there's been some sackings since the new laws came in.”
MICHAEL FORTELNY: There's no coincidence. He's waited for the new laws to come in before he sacked us. Nine experienced operators sacked just like that.
The union claims that Triangle Cables restructured its staff to avoid unfair dismissal claims by having less than 100 employees. And when the axe fell, it was delivered without mercy.
CHARLIE BALDACCHINO: They give me the letter and they said, “You can go fishing now.”
REPORTER: You can go fishing now?
CHARLIE BALDACCHINO: Yeah, that's what they said.
MICHAEL FORTELNY: I think we're all pretty much still in shock about it. It's pretty…it's a hard thing to happen to a person with a family.
REPORTER: After your boss thought that you were involved in a strike, he stopped talking to you completely?
SLAVKO MARKOVIC: Yeah, completely. No good morning, absolutely nothing.
REPORTER: Ignored you?
SLAVKO MARKOVIC: Passed next to me doesn't say even “Good morning,” I feel very bad. I feel very, very bad. I talking about myself, I'm pretty sure these people happen same thing. Then one day he came in, he just called us in the office, “Go home.” No explanation, no reason, nothing. Just go home after seven years. I mean…
REPORTER: Let me put this to you, were you troublemakers? Did you make trouble in the workplace?
SLAVKO MARKOVIC: No, no. No. I running four machine. Every single second you're busy there. Some people running one machine, OK, little bit difficult. But my machine, four machine, I never stop so I doesn't deserve this.
Some of the sacked workers, including Michael, are receiving WorkCover payments and were on reduced hours because of injuries they'd suffered at work.
MICHAEL FORTELNY: Shelving collapsed on me.
REPORTER: And was that because of poor safety?
MICHAEL FORTELNY: Poor safety, yeah. The shelving, they weren't put up properly. They were second-hand shelves that the fitters there welded together and just patched up and put them up.
UNION OFFICIAL: With the Federal Court and the Equal Opportunity Tribunal we could be looking at a year.
Now the sacked workers are facing the tough task of finding new jobs.
TOULA CUBELA: It killed my family. It upset my mum and dad, it upset me. I've got a mortgage to pay. Fine – I haven't got kids but it makes me angry. It destroyed me, it just like…it's like someone…
CHARLIE BALDACCHINO: They done this thing with a very cruel heart. It was cruel with the people who work honestly and give them all they have to give them, the full production what they was looking. And what I say, he was a very ruthless man.
JENNY BROCKIE: Well, Kevin Andrews, welcome and thank you very much for joining us from Canberra. Do you think what happened to those men is fair?
KEVIN ANDREWS, MINISTER, WORKPLACE RELATIONS: Well, if they were sacked as is suggested in the story, because they were on WorkCover or because in one instance was suggested that Michael, I think it was, was a member of a union, then that's probably an unlawful dismissal and if it's an unlawful dismissal, then there are provisions in the law. And, as I understand it, the Office of Workplace Services is looking into this at the moment.
JENNY BROCKIE: Nicholas Wilson, you're the director of the Office…the new Office of Workplace Services, you are investigating this case. Does it seem fair to you?
NICHOLAS WILSON, DIR. OFFICE OF WORKPLACE SERVICES: I can confirm that we are investigating it but what I need to point out is that it is a matter of due process that we need to give to both the employees and the employer. We haven't yet completed that investigation. It's now going through a process of looking at some legal matters and also determining whether, on the evidence, there has been an unlawful termination. Now, at the moment I can't talk about that because that process has not been completed.
JENNY BROCKIE: Okay, now how did you come to investigate the case? Was that your decision or did the Government ask you to?
NICHOLAS WILSON: Look, my belief is that the Office of Workplace Services was alerted to it through the public comment that had been made, whether it came first from the media or from the Minister's office I'm not exactly sure. I wasn't with the OWS at that time. It was just shortly before I did commence. But certainly our policy with these things has been to ensure that where any public comment is made that might look as though there is an unlawful termination, our investigators will attend and see what is the circumstances.
JENNY BROCKIE: So you don't know how the investigation was instigated? You don't know who actually instigated it?
NICHOLAS WILSON: I'd have to check the file on that matter.
JENNY BROCKIE: Andrew Stewart, you're a lawyer, an industrial lawyer. Do you think what that company did was legal under the new legislation?
PROFESSOR ANDREW STEWART, LAW, FLINDERS UNIVERSITY: Well, if what the workers have said is correct, certainly sounds like they've got some legitimate causes for complaint. It's quite possible they've been discriminated against on a number of grounds. It's quite possible, as the Minister has said, that they've been unlawfully terminated. But their case, their story highlights a couple of significant features of the WorkChoices legislation.
One is that if indeed they were terminated after 27 March and if their company didn't have more than 100 employees, then they can't take a case to the Industrial Relations Commission. Now, before WorkChoices you could do that and that was the quick and easy way to get a remedy. Now, if they're going to pursue a remedy, they've got to go to court. That's going to be a lot more expensive.
JENNY BROCKIE: Sharan Burrow, why shouldn't a company be able to sack workers if it wants to?
SHARAN BURROW, PRESIDENT ACTU: Here's the cruel human cost of these spiteful laws – Michael with four children, all those years of service, Slavko with four children, his wife with cancer, an operation two weeks later. The company knew about this. Six of those workers injured in that company while at work, one of them virtually having lost the use of his hand, and here you have a set of laws that, on our reading, if these workers are simply told they're no longer required, the boss doesn't want them, that's legal.
Now, why on earth… Working people are saying, “Why on earth would a government introduce a set of laws that would allow this to happen?” One of those workers also has a child with a disability. And yet here you have a secret task force that we have no idea how it operates, no transparency, no timeline. You used to have a commission to deal with this and the Minister simply took away its powers. Why would that be?
JENNY BROCKIE: You're calling Nicholas Wilson's Office a secret task force, are you?
SHARAN BURROW: We have no idea how it operates. None of the union officials have been asked for evidence, there's no timeline, these people are without work and, frankly, without the union they'd be without hope at the moment.
JENNY BROCKIE: A response from you, Nicholas Wilson.
NICHOLAS WILSON: It's total nonsense to call us a secret task force. The fact of the matter is that the inspector at the Office of Workplace Services has been in existence for many years. We work closely with trade unions in many instances and certainly we'd be expecting the cooperation of the National Union of Workers in this instance as well. I can't speak in detail about the case because I wasn't directly involved but certainly our inspectors, if they thought it was relevant, would have contacted the NUW.
JENNY BROCKIE: Garry Brack, you represent employers. Regardless of the law, on the face of it, do you think what that company did is OK – to sack those people under those circumstances?
GARRY BRACK, EMPLOYERS FIRST: Well, I can't work that out because as the Minister already suggested, we've got one side of the story and anybody who's been involved in this game will know that when you go and talk in detail to employers a whole load of issues come out, when you talk in detail to employees a whole lot of issues come out and you don't really know what the mix is until you've gone through that whole process, have the debate, grill the witness, etc, start preparing the evidence and that's when you find out whether or not you've got a solid case or not. The employer may have a solid case or they may not but if they sacked them as was alleged, simply because they are trade union representatives, then plainly there would be a problem because there's illegality under the legislation. We don't know that's true. That's an allegation.
JENNY BROCKIE: As I said, we'd like the company to be here to put its side of the story and we did invite them but they chose not to come.
GARRY BRACK: As you know, employers are very skittish about doing anything with the media because they think they're on a hiding to nothing. Not on your program.
JENNY BROCKIE: I should not hope, Garry.
GARRY BRACK: On certain others.
JOHN SUTTON, NATIONAL SECRETARY CFMEU: Can I make the point that for about 100 years there has been an institution that's been out there in the workplace tackling the problems you see at Triangle and so many others that are multiplied across the work force – and of course they're going to multiply much further now that we've got Worst Choices. That institution was the trade union movement.
The idea that $100 million and 200 inspectors can effectively look after 10 million Australian workers and the abuses that happen in workplaces – and of course under Worse Choices are going to multiply – it's a farce.
JENNY BROCKIE: Kevin Andrews, this legislation is about really minimising the power of the unions, isn't it?
KEVIN ANDREWS: The problem with that comment is that over four in five workers in the private sector in Australia today are not members of a trade union. Workers have not been joining trade unions in any sense. Union membership has been declining year after year in Australia. What we've done is put in place with the Office of Workplace Services, an independent body which is there to serve all employees in Australia and, indeed, employers who want to go there for advice, whether or not they're a member of a trade union.
JENNY BROCKIE: Sharan Burrow, the Minister's right, isn't he, that people haven't been joining trade unions, it's been a big problem for you that people just aren't joining anymore?
SHARON BURROW: The Minister's talking nonsense on several fronts. One is that union membership's up – 70,000 in the last year, a quarter of the total workforce including self-employed people. And the Commission, the Industrial Relations Commission, 100 years of an institution trusted by the people, has been there forever. And, frankly, this isn't about union members or non-union members, these are about rights at work that affect every working person and their families. And that's what we're seeing at Triangle Cables, at Optus, at Cowra, now at Myer and their new contract arrangements, right across the board. And we want the Office of Workplace Services to come clean.
Is it legal to sack people even when, in the case of Triangle Cables, the company's in fact advertising for additional workers – so it's not that they don't have the work – butWHEREver they are, if the work's there today and it's there tomorrow, is it legal to sack people just because the boss wants to? And that's our reading of the law.
JENNY BROCKIE: Kevin Andrews, yep.
KEVIN ANDREWS: Well, Jenny, Sharon is just factually wrong about what she says. Union membership in the private sector work force in Australia today is about 17%, that's the lowest it's ever been historically. But we ought to go to why we changed these laws.
JENNY BROCKIE: What about the point she made about whether it's OK to sack someone just because you want to? Is that OK now?
KEVIN ANDREWS: Let's go to why we changed these laws. The unfair dismissal laws was only introduced by the Keating Government in the early 1990s and it's been subject to widespread abuse. I mean, you have cases where an employee sexually harasses a fellow employee and is reinstatedWHERE an employee commits acts of violence against a fellow employee and has been reinstated, a case where an employee throws excrement at a fellow employee and is reinstated.
These are the sort of abuses that we've had under this system. And then on top of that, it costs employers something like $10,000 or $15,000 if they want to fight a case that's even unmeritorious. And they end up paying go-away money, money to get rid of the problem. Now that was bad policy, it was a bad law and that's why we changed it. And what I've found over the last six weeks is quite a number of employers coming up to me and saying, “Look, I'm just a mum and dad business, we've got the mortgage of the house on the line for this business and we've actually gone out and employed somebody because of the freedom to go and employ more people now.” Now that's the other side of this which, of course, the unions don't want to talk about.
JENNY BROCKIE: Paul Munro, you're a former judge of the Industrial Relations Commission, do you accept any of what the Minister says – that it was just too difficult under the old system to get rid of people?
PAUL MUNRO, FORMER JUDGE, INDUSTRIAL RELATIONS COMMISSION: There were difficulties. But I wanted to pick the Minister up on two, I'll call them errors. I don't think the Office of Workplace Services could be called an independent agency. It's a departmental agency. It has no statutory independence. It's under ministerial direction.
Secondly, 1993 was not the inception of unfair dismissal laws in Australia. The States anticipated that in line with ILA recommendations back into the '80s. There have been unfair dismissal rights under statute, under State systems since 1904 or thereabouts.
So the idea that it's some recent novelty that can be thrown out as though it is just a Keating fashion, is a misrepresentation. The administration of it, I would concede, as being one of those who was involved, had its flaws. There were difficulties for employers. They were played up politically and it has been a political ramp to a degree.
Now, what has taken away? Your questions have been, “Is it OK? Is it fair?” Neither the Minister nor the employers make the point that, for the cable-makers in this instance, fairness, Okayness is irrelevant. The fair-go-all-round test is thrown out for workers of this kind. The only test is – is it illegal? That is a much more difficult one. You go to court to establish it.
JENNY BROCKIE: Well, at this stage we're heavily reliant on the individual cases that have come to light to work out just what the new laws mean and how they're going to affect the workers. Now, Nicholas Wilson, what about the much publicised case at the Cowra abattoir where 29 meat-workers were sacked and then asked to compete for lower-paid jobs. Where's that investigation up to now?
NICHOLAS WILSON: Well, Jenny, again, that's a matter which is continuing in its investigation process. The legal process of determining what should be done about it and whether there has been any unlawful behaviour is about complete but it's not yet complete.
JENNY BROCKIE: So when will it be complete?
NICHOLAS WILSON: In the next couple of weeks.
JENNY BROCKIE: In the next couple of weeks?
NICHOLAS WILSON: Yes.
JENNY BROCKIE: Now this swung around this idea of sacking people for operational reasons, didn't it? This idea of operational reasons being a reason that's given, yes?
NICHOLAS WILSON: Well, there have been many allegations made in the media about what that case was about. I don't think it's for me to advocate the position of either the employer or the employees about that matter.
JENNY BROCKIE: Now, what do you understand 'operational reasons' to mean?
NICHOLAS WILSON: Well, the terminology is defined in the legislation in some degree of precision – that a person who is dismissed for a number of factors, and I don't have them here with me this evening, but for business reasons or changes to the way that the company operates or for technological reasons, they define as operational reasons.
JENNY BROCKIE: What do you understand the term to mean, Andrew Stewart? Because this is one of the areas people see as very contentious because it can be interpreted in a number of ways. Do you think it's open to wide interpretation?
PROFESSOR ANDREW STEWART: It's clearly an ambiguous term. One view, which I've heard the Government espouse occasionally, is that it just covers people being made genuinely redundant. But there's a broader view that's possible on the literal reading of the words in the act, which says whenever your dismissal has got something to do with the operational requirements of the business, that's operational reasons. Now, there's almost never a dismissal that has got nothing to do with the operational requirements of the business. So it's potentially a very broad term. The only way we're going to find out what this means is to have a test case or probably a series of test cases, and, of course, that may be years down the track.
JENNY BROCKIE: I wonder how some of the employers feel and how you interpret this term 'operational reasons' and what you think these laws are opening up for you. Ian, you're a clothing retailer, what do you think it means?
IAN THOMAS, EMPLOYER: Retail is changing very quickly at the moment and if a particular brand of yours isn't working, then you need to restructure and that means, often, close down stores to save the jobs of others.
I'd like to get back to the fair go. And I sort of watched the Triangle Cables. And you can feel very sorry for those gentlemen. And what runs through my mind is “Why did the employer go ahead and sack these guys if they're really good workers?” I, for one, can't find enough good workers and any good workers that I have I treat like gold.
JENNY BROCKIE: And do you think it is a fair go, the new laws, for everybody?
IAN THOMAS: I actually think that they're probably, as Gary said, I think maybe the pendulum is a little bit the other way. It was scary when the dismissal laws came in, in the '90s and I was trying to grow a business and we had to give… I called it 'management by threat'. So we actually had to give people three warnings and sit them down and get them to sign off on things. It was a terrible, terrible system.
JENNY BROCKIE: OK, but that's you, that's an individual in the situation. What do you think about what is open to employers now? I mean, is it open slather? Do you feel you could sack anyone if you wanted to?
IAN THOMAS: OK. If there was… Yes, there will be bad employers, no doubt, OK, there will be bad employers and there will be bad employees. And I say to myself, or I say to everyone, if you're a good employee and you're working for a bad employer, better that you get sacked and go and work for a good employer than to stay with a bad employer.
JENNY BROCKIE: OK, Lyn wants to say something here. Lyn, you worked for a NSW RSL club for 25 years, I think, and you were asked to resign or face the sack. The same week the new laws came in. Tell us what happened.
LYN BARNES: 5:00 on the Friday afternoon I was called in to the boardroom and I was told that I could either resign or get the sack. In resigning I would keep all my entitlements. But I knew, when they told me, that when I walked out I was unemployed. 58 years old – oh, well, yes, I'd love to go and get a job, a permanent job.
JENNY BROCKIE: Why do you think you were sacked? Did your bosses say they'd been unhappy with your work?
LYN BARNES: That's the reason they gave me. But in 25 years I never once had a warning, no-one had ever said they weren't happy. I'd done many jobs. I managed the club on numerous occasions in between managers being given the sack or asked to leave, and I had been the assistant manager for about 13 years.
JENNY BROCKIE: So why do you think it happened?
LYN BARNES: We had a much younger person, manager, who was trying… We're a, kind of, much older club. We were trying to attract younger members. I believe that he believed I was too old, although he would never say that, and in freeing up my money they were able to employ younger people, maybe two younger people.
JENNY BROCKIE: So you think it was age discrimination?
LYN BARNES: Yes, no doubt.
JENNY BROCKIE: So Kevin Andrews, in a situation like that, like Lyn is in, what recourse does she have?
KEVIN ANDREWS: Well, if she was sacked because of her age, then that is a discriminatory ground and that can be the basis for an unlawful termination claim.
JENNY BROCKIE: But she only suspects that, but she only suspects that. How is she going to prove that?
KEVIN ANDREWS: Well, in all of these matters there is always two sides to the story. Now, if she hasn't already been to the Office of Workplace Services, she should go to them. They can investigate the matter, they can give her some advice about it. We've even put in place a scheme where people can receive up to $4,000 worth of legal assistance to help in this regard.
LYN BARNES: Mr Andrews, isn't that means tested?
KEVIN ANDREWS: Now, she, in those circumstances, has the opportunity of taking that up. But if she's right and this is on the basis of her age, then it may well be that she has a claim for unlawful termination.
JENNY BROCKIE: But I get back to the point that she suspects it's because of her age. And in a lot of these situations people don't have hard evidence because the employer isn't going to say, “I'm sacking you because I think you're too old,” because they know there is anti-discrimination legislation.
KEVIN ANDREWS: Courts and tribunals, every day, have to weigh up what different views about a matter is, they have to look at what evidence is there. Sometimes it's hard, sometimes it's not so hard. I mean, that happens in reality every day. And there is a process by which a claim such as this can be investigated, a process by which she can get some legal assistance to do that and for the matter to be processed in that way.
JENNY BROCKIE: Alright. Let's make use of you, Nicholas Wilson. You've heard Lyn's story, she comes to you with her story, what do you do?
NICHOLAS WILSON: The first thing I do is I help her fill out a form to approach the Industrial Relations Commission for conciliation… Now, the fact of the matter is that the conciliation would go to the Industrial Relations Commission, in the first instance, as an unlawful termination. The fact of the matter is that 3% of matters that have gone to the Industrial Relations Commission in recent years have not been resolved in conciliation. Only 3%. So the fact of the matter is that most of them would be a result.
JOHN SUTTON: The old laws.
PETER ANDERSON, AUST. CHAMB. COMMERCE INDUST: Unlawful dismissal laws have not changed, John. The unlawful dismissal laws have not changed. You still have a process of a conciliation hearing.
JOHN SUTTON: Under 100 you need no reason whatsoever. Over 100, easy as anyone can drive a truck through those laws.
PETER ANDERSON: No, that's not the case at all.
KEVIN ANDREWS: We're talking about unlawful dismissal.
JENNY BROCKIE: I'd like to just go back to Nicholas Wilson. Nicholas Wilson, what I'm interested in, too, is if Lyn comes to you with her story and says, “I was told to resign otherwise I would lose all my entitlements,” what would you do about that? Is that acceptable for an employer to say that?
NICHOLAS WILSON: Well, again, if someone is threatening to deny her entitlements, obviously that is not lawful and that would be where one of our inspectors can assist. Now, we would go through the process of speaking with Lyn and also speaking with the employer and any other people who've been involved in the process and ascertain what the facts were.
JENNY BROCKIE: I should also point out we did approach this employer as well who also didn't not want to comment.
NICHOLAS WILSON: Have you approached the Office of Workplace Services about this matter? Has Lyn approached us about this?
JENNY BROCKIE: Well, I'm approaching you about it now?
NICHOLAS WILSON: No, before this program, have you approached us about it?
JENNY BROCKIE: It's not my case, it's Lyn's case.
LYN BARNES: I mean, this happened to me five weeks ago and I'm still… I mean, I'm gutted, I'm devastated. 25 years, no warning, you know. I had 19.5 weeks sick pay, which tells you something. I was manager when they didn't have managers. I did everything in that club. And they come along and decide, “Oh,” – well, I'm only saying – “You're a bit too old.” They call me into a room late on a Friday afternoon and they just go like that – “You're out.” Just instant, you know.
JENNY BROCKIE: Sharan Burrows has been wanting to say something from Canberra. Yes, Sharan?
SHARAN BURROW: Well, Jenny not only is this unbelievable, this case.
And if it went to court it would cost $30,000. How could Lyn afford that? But I can tell you first-hand that the Office of Workplace Services can't calculate in four months from February a simple wage adjustment where a Canberra restaurant has admittedly underpaid a worker. Now, four months to get a judgment on a simple wage calculation that any union official can do overnight and we're asked to trust this system?
There was an Industrial Relations Commission, it was trusted, why on earth would it be taken away from the Australian people and this departmental authority under the direction of the Minister simply put in its place? We cannot have a fair go all round in this environment.
PETER ANDERSON: Jenny, it's very clear why the Industrial Relations Commission has now a much narrower jurisdiction to deal with unfair dismissal cases. It's very clear. The system which existed before these new laws was routinely abused. It was routinely abused.
JENNY BROCKIE: This is in terms of unfair dismissal.
PETER ANDERSON: In terms of unfair dismissal. For every single case of hardship where an employer may have done the wrong thing, there were multiple cases of people who were encouraged to bring unfair dismissal claims into the Industrial Relations CommissionWHERE they had no merit but purely with the objective of trying to get a few thousand dollars of settlement money.
JENNY BROCKIE: OK, gentleman up here.
MAN: I think something is really being missed here, because you’re talking about individual cases of abuse and then somehow we have to learn something from that to punish every single person in the workforce. We're talking about removing conditions of employment which have been around for the last hundred years in Australia. We're talking about minimum wages. We're talking about the right to have security of tenure. We're talking about raising a family, paying off a mortgage. We're not just talking about one or two people who should be punished under the so-called legislation.
If you look at the fine detail of the legislation, it comes to mind, you know, there is only five basic conditions which are protected and even those conditions come with particular very special conditions and ways of interpretation. But there's only five conditions which are protected and that is, I think – if I remember correctly – the 38-hour working week, I think there's parental leave. But things like penalty rates, security of tenure is all out the window. And you can't foist that over millions of people because of the behaviour of certain individuals. It just doesn't match.
PROFESSOR ANDREW STEWART: This isn't a question of swinging the pendulum back, it's a question of taking the pendulum out, taking the whole clock away. I mean, that's what this legislation is doing. Of course the old unfair dismissal laws, the federal unfair dismissal laws, in '93 weren't working, of course they need to be… needed to be fixed. They still could have been fixed up…..rather than to remove the principle of the fair go.
Now, the important point is not….it's not just that there are a lot of workers now who don't have a right to complain of unfair dismissal, whose only remedy is through the courts, it's not just that. It's about the message. It's the message that it's sending to the business community. And there are lots of good employers out there but this law sends the message that the fair go doesn't matter.
JENNY BROCKIE: OK, Leonie, what about you as an employee, how has it affected you? You're 17. Now, I understand you were sacked from a Queensland ice cream chain, Cold Rock, a few days after the legislation came in and your case is now being investigated for unfair dismissal. What happened and do you think it was connected with the new laws?
LEONIE WONG: Definitely. It was actually… He actually mentioned in an interview with myself and my union rep that if I didn't sign the AWA, that I would be fired.
JENNY BROCKIE: But your employer says… We have contacted your employer and they say it had nothing to do with the new laws and that you had had an adverse affect on morale in this company. Now, these are the reasons that have been given. And you were a casual because you refused to sign the workplace agreement.
LEONIE WONG: No, I was actually employed as a permanent part-time. I was getting paid as a permanent part-time but because I actually raised the issue that, you know, I'm not getting overtime for working a 12-hour shift, that's when he sort of said, “Hang on, you didn't sign the AWA so, yeah, you are entitled to the casual rates”. As soon as he knew that then he's like, “Well, because you didn't sign the AWA, I'm going to sack you.”
MAN: And that's what happened to me. I mean, the ability of the union to represent employees and collectively organise is basically thrown out the window. Now, what would be the motivation of that, I wonder? The union movement is the biggest single political donator to the Labor Party, just like big business is to the conservatives. And blind Freddy can see the basic motivation of this is the emasculation of the union movement and, therefore, the destruction of the conservative's political opponents, the Labor Party.
JENNY BROCKIE: Kevin Andrews, a response.
KEVIN ANDREWS: Look, that's total nonsense. This is about looking to the long-term future of Australia. The reality is that we have to ensure that we have as productive economy in Australia as we can. Nobody else in the world owes us a living. These are fair reforms, they are significant reforms, they are about setting up Australia for the future. If we don't do these things, well, then we will go backwards relatively.
JOHN SUTTON: These laws don't really generate productivity at all. What they do is they generate fear in the workplace, intimidation in the workplace, they intimidate workers into silence, which often isn't for the betterment of the employer because workers have a lot of good ideas.
But what this is about is forcing problems under the radar, and ultimately businesses are going to have higher absenteeism, they're going to have higher turnover of labour, they're unhappy, bad morale. These are all going to be features of this system because workers are not given a proper outlet to have their say in a constructive fashion.
KEVIN ANDREWS: This is exactly the same rhetoric we heard 10 years ago. People said the sky was going to fall in 10 years ago and it simply hasn't happened. The reality is that we have more people in work, they're getting paid higher wages now.
MAN: Under the current system, under the old system.
KEVIN ANDREWS: We're facing a future with an aging population, as some of your people in the studio have pointed out, that we're trying to find every worker we can find in Australia. We're facing a shortage of up to 195,000 workers in the next five years alone in Australia. Employers value workers otherwise they won't have a work force.
MAN: How is it that we have managed to achieve, on average, 3.5 to 4% economic growth and falling employment if the old Industrial Relations system was so inflexible and bad? Answer me that.
KEVIN ANDERSON: That was a system the Labor Party voted against and said that the sky would fall in. They said that the changes we made 10 years ago would destroy family life and working life in Australia. The opposite occurred.
MAN: Your changes were mooted by the Senate.
KEVIN ANDERSON: How can you believe anybody who's saying that today?
JENNY BROCKIE: I'd like to move on at this point because at the same time that these new laws have come into effect, the Australian work force itself has been quietly undergoing quite a dramatic change. The number of overseas workers coming to Australia has risen sharply in recent years and unions and the ALP are claiming it's driving down local wages and conditions. Here's Amanda Collinge again.
GUEST WORKERS STORY:
REPORTER: Amanda Collinge
Rima and Tua came to Australia from the Cook Islands with the promise of a good job in the construction industry – installing guttering for new homes.
RIMA: We came here. We, first day we went to work, we never went to sleep – straight to work after the long night on the plane, straight to work that morning.
The boys, just 19, had no choice about their accommodation. Their employer insisted they stay with him.
RIMA: They got the meals, like, they buy us shopping and just put it in the cupboard, like noodles and stuff. So basically we just have noodles every day.
For eight months they worked five days a week, sometimes six, from 7:00 in the morning till 6:00 at night with no lunch break. They were paid, on average, $50 a month.
RIMA: He just pays us $50 a month if he's happy sometimes.
REPORTER: $50 a month?
RIMA: Yeah. $50.
REPORTER: That was the only cash you actually got?
After three months the employer started to become violent whenever the boys made a mistake.
RIMA: If we like, mislayed any tools and we don’t tell him after like a day, or two days, he… if he finds out himself, he just gives us big smashes on our face. He tries to make us bleed, that’s how he.. when he makes us bleed, he’s happy. Bleed..like sore nose, black eyes.. sometimes cut lip inside because he punches the mouth and stuff. Sometimes he just… poke you with his two fingers in the eyes. He tries to, but we always move our face and he gets more angry and wants to do some more.
For anyone else, this would have been a matter for the police but Rima was afraid.
RIMA: I was thinking of going to the police but I couldn’t, I was too scared to go to the police. I don’t know what to say to them, they won’t trust me if I go and tell them. Because that guy, he knows how to lie. So that is why I stay with him.
Rima felt trapped. His employer had taken his passport and prevented him from contacting relatives.
RIMA: My passport, my birth certificate, all my belongings, he’s got it.
REPORTER: So when you arrived, he took your… all your identification?
RIMA: All our identification, he said to us he’d hold our passport and look after it so we won’t lose it. I felt trapped because he wouldn’t give me my passport and I wanted to move out. I was telling him “ I want to move out ‘cos I don’t want to work with you any more.” And then.. he won’t let. He said to go back over there, “I’ll bash you up some more.”
After eight months the boys finally escaped and a family friend put them in contact with the union. Rima now lives with his girlfriend and two children and is looking for a better job.
REPORTER: Did you ever get any support from the Government, any Government official?
RIMA: No. We haven't got any support from anyone because we don't know how to get support. It's pretty hard for us to get it because first time here and no-ones knows us because we don't have any identification on us.
REPORTER: It was a very bad introduction to Australia, wasn't it?
RIMA: Yeah. Really bad. Because, I don't know, because maybe it is really bad but probably there is other bosses out there doing this kind of stuff and no-one knows.
JENNY BROCKIE: John Sutton, it seems like a very extreme case. What does something like that have to do with the new workplace laws? Wouldn't that have happened anyway, that kind of exploitation, under any kind of system?
JOHN SUTTON: These cases, Jenny, are becoming much more common. Under Worst Choices, our chances of intervening, our chances of taking quick remedial action are much diminished. And the broader point I want to make is there's really two major attacks on the Australian work force that are happening right now.
One are the new labour laws that we're talking about here tonight that a lot of people know about. The second is the Government's rapid use, rapid deployment of guest labour as their quick fix to the training mess that our country is now in. There has been a 7-fold increase in the last 10 years, there is nearly 700,000 of these short- and long-term temporary visas that's been issued in the… 700,000 up to the year June 2005, compared with about 100,000 10 years ago.
700% increase because the Government is really making it, making employers able to exploit this kind of vulnerable work force. They can't say anything, they're on temporary visa. If they object, like Rima or Tua… They are in fear and they know if they object, that sponsorship is terminated and within three weeks they're out of the country. So they are very vulnerable and under Worst Choices they can be put on AWAs, individual contracts and they have zero rights.
JENNY BROCKIE: Kevin Andrews, there has been a huge increase in the number of guest workers in Australia. Aren't they particularly open to exploitation, particularly not knowing the system here, or not knowing what their rights are?
KEVIN ANDREWS: Well, let me first deal with the case because those circumstances, as described, are not only unlawful, they would appear to be contrary to occupational health and safety and probably, possibly WorkCover laws in whichever State this occurred in. We don't know whether the employer was under the federal or State system.
But it also indicates what, quite clearly, would seem to be criminal behaviour on the part of employer. In terms of workers coming to Australia, we have a shortage of workers, as I've said, we're facing a shortage of up to 195,000 people of working age in Australia in just the next five years.
And now people coming in on temporary visas to work for up to a period of four years, if they're coming into regional Australia, they have to be given approval by regional certification bodies. These are usually set up under the auspices of the Labor State Governments in Australia who know that they need workers in many of their regional areas, as well. But this is something which we do control and it's wrong to say that somehow we are just flooding workers into Australia. OK,
JENNY BROCKIE: Sharan Burrow, a quick comment from you?
SHARAN BURROW: Look, this is just out of control – more than 100 visas a day on the employers' say-so. We've got cases all over the country which have never been seen by anybody except the department. They are unwilling or unable to investigate complaints. And, quite frankly, this is now being used as an effective guest labour program.
The Minister promised me 18 months ago we wouldn't have guest labour in Australia, we wouldn't treat anyone here with that indignity and yet we can show you – where there's no test of the local labour market, so in fact people in Australia, particularly those young people seeking apprentices, are missing out – we can show you where there are not equivalent wages and conditions being paid and we can show you levels of fearful abuse capped off by the fact that if these people are out of a job with this employer, or it's unsatisfactory, they don't even have the dignity of international law that says they are free workers, that they're entitled to seek other employment.
We've got employers who simply say, “This is terrific. You can try these workers. If you don't like them, you complain to the department and they're out of the country.” This is not the Australia that's a proudly immigrant nation, with permanent employers.
JENNY BROCKIE: Rima, did you know what the minimum wage was in Australia when you came here?
RIMA: No, not really. We didn't know how much we get paid over here.
JENNY BROCKIE: So when you were offered $50 a month, what did you think?
RIMA: I think I just took it and buy me some stuff. But I knew that that wasn't the whole pay, that's not how much a person gets paid, $50.
JENNY BROCKIE: Nicholas Wilson, you're sitting next to Rima, here. Now, you're going to be responsible for inspecting, policing – in a sense – what's going on out there in the workplace? How many inspectors do you have to be going around checking out whether people are getting a fair go or not?
NICHOLAS WILSON: Well, Jenny, as I said before, we'll have up to 260 staff throughout the country. What I'd point out about the case that's been put on the report here is that the question which your reporter didn't ask was how many Government officials did you actually speak to? How many did you seek information from? Now, I certainly would be encouraging anyone who's in a circumstance where they believe they're being treated unfairly to be speaking with our inspectors or anyone else, for that matter, in Government.
YOUNG MAN: Jenny, it doesn't appear like they understand the practicalities of the situation. I mean, are they meant to call up the Office of Workplace Service and expect an inspector to just come out that day? I mean, is someone like Lyn meant to just walk into the Federal Court and initiate an unlawful dismissal? It's like getting into queue and signing up…. There's practicalities of situation. I mean, 230 staff – how many workers do we have in Australia.
MAN 2: They are part of a community and if they come forward, as a result of that, they'll not only be ostracised from their workplace but they'll be ostracised from their community of that particular nationality as well, because it's run by a big person.
MAN: It's a big risk in coming forward. I don't know what's legal and illegal anyway because the legislation is so huge and to someone who comes from overseas, how are they going to understand the piece of legislation?
MAN 2: We live in an age of irrelevance. Because, let's face it, this debate we're having is irrelevant because while ever the Liberal Party have the balance of power in both houses, the big question to me is where is the Federal Labor Party in all this? The Labor Party has distanced themselves so much from the everyday worker, that now we have no Labor Party in this country and so every day people in this country are getting screwed. It's the only word for it.
JENNY BROCKIE: I should actually point out that we did invite Stephen Smith from the Labor Party, the Shadow Minister, to come on tonight and we had all kinds of problems getting him here from Perth. So he did want to attend.
MAN 2: We appreciate what it's like to be these employers because as an Australian voter, I know I've got two dud employees which are the Labor Party and the Liberal Party and I want to sack both of them and I can't.
JENNY BROCKIE: We're going to have to wrap up. There is something I would quickly just like to whip around some of the employers here, people who are employers – concern about penalty rates. I just wonder Kay Morrison, are you going to use new laws to get rid of the penalty rates?
KAY MORRISON, EMPLOYER: Ultimately, I think. But I'd like to make a comment that you've been talking about… not about small business here. Small business employ more people in the country than anybody else and small business owners will like this legislation. This is very early days in this legislation yet, we do not know how it will operate. There's a huge amount of education that needs to be undertaken by the employees and the employers.
And organisations like mine, which is the Federation of Business and Professional Women, we will be playing a role in that. And I think that there are some good things about this legislation. I'm delighted that it is there because we've had all sort of problems in the past.
JENNY BROCKIE: Getting back to penalty rates, though. I'm interested. You will do away with penalty rates ultimately under this legislation?
KAY MORRISON: Yes, ultimately I will do away with them. But what I will do is even out my hourly rate to take that into account but I will definitely do away with penalty rates.
JENNY BROCKIE: Glenn, what about you? You tell us what sort of business you run?
GLENN DAVIES, EMPLOYER: We run a recruitment business so we're actually seeing a lot of positive effect from these new changes, not only as an employer but our clients are actually starting to hire a lot more now.
JENNY BROCKIE: On the question of penalty rates, will you be doing away them as well in yours?
GLENN DAVIES: It's not part of the immediate future plan, no.
JENNY BROCKIE: Kevin Andrews, do you think most voters support these reforms?
KEVIN ANDREWS: There's a period of transition where people will be looking at what the changes are and how they affect them but the reality is that something like 10 million Australians went to work today, 10 million or so Australians will go to work tomorrow.
There's been just a handful of cases, which are contestable anyway as to what they're really about. The reality is these are changes which are good for this country.
JENNY BROCKIE: And can you give a guarantee that the real value of minimum wages won't drop over time with this legislation?
KEVIN ANDREWS: What we've set is the 2005 safety-net decision as the starting point for minimum wages – but we've retained all the classification wages and they will be adjusted from time to time by the Australian Fair Pay Commission This is a broad cross-section of people who will analyse all the evidence and try to set minimum wages that lead to more Australians getting jobs as well as increases in the wages themselves.
JENNY BROCKIE: But can you give a guarantee that the real value of minimum wages won't go down?
KEVIN ANDREWS: Look, we have set an independent body to actually undertake this process. It is not independent. I said the starting point below which you can't go is what was decided last year by the Industrial Relations Commission and one would expect in an economy like we have at the present time, that there would be upward adjustment of the wages.
JENNY BROCKIE: A final, quick comment from you Sharan Burrow.
SHARAN BURROW: We know from the polls that 70% of Australians oppose these laws. 60% of voters in marginal Coalition seats say they're the single greatest issue to cause them to vote against the Government. But the Government knows that too. We know they're unpopular but so does the Government and they've spent a lot of money and a lot of time since last June denying the real impact of these laws on workers and their families and the Minister's doing it again tonight.
Overall, whether it's the workers we've talked about, the Optus workers who are doing the same work today that they were doing last week but as independent contractors paying all of their costs for super, for workers comp, whether it's the intersection with those temporary visas that are not being policed properly, all around we've got a government that says “These laws are in place,” but really we know they're a free kick for big business and, frankly, working people and their families will take a kick in the guts because their rights at work have been torn up.
JENNY BROCKIE: We are going to have to leave it there. Sharan Burrow and Kevin Andrews, thank you very much for your time from Canberra. And thank you everybody here tonight for joining us on Insight. And that is Insight for this week.