Source: Australia Government – Attorney General
Subjects: IR reform
ATTORNEY-GENERAL: Thanks everyone for being here. Obviously it’s a busy day and there’s a lot going on, including the final budget outcome. But for my part in the industrial relations portfolio, we’ve released the first of two discussion papers with more to come exhibiting the process that we’ll engage in, in reviewing the industrial relations system in Australia.
The first two papers deal with penalties and enforcement, particularly for underpayment and the most serious categories of underpayment that are sustained, substantial, involve knowledge and sustained underpayment by large employers and how it might be that we would best have a sanction that is appropriate and fit for purpose and criminal in those circumstances.
The second of the discussion papers is a very important issue around whether or not there can be enterprise agreements that exist for the life of a green-fields project. So major construction projects in the resources industry, large road projects and other construction projects, often very difficult to estimate the time that it will take to finish the project. As things presently stand, enterprise agreements in effect finish at a four-year point after they have been approved.
So two very important issues, the first two discussion papers, and we hope that this is a process of rational debate on single issues – case by case – full stakeholder consultation to the point of trying to build a consensus to show what changes are going to be able to lift rates of employment, put upward pressure on wages and make for a healthy Australian economy. And obviously happy to take any questions that you might have today.
QUESTION: Minister, Centre Alliance has suggested the ensuring integrity bill might be a sledgehammer to crack a walnut. Are you open to amendments so that less serious breaches won’t be punishable by deregistration and to give more courts discretion to refuse applications for deregistration and for disqualification?
ATTORNEY-GENERAL: Well look, the fact is with the bill at the moment that less serious (unclear) will never, ever involve deregistration. They just won’t. The type of persistent unlawfulness that you’d have to reach to successfully argue for the deregistration of either whole or a part of an organisation – keeping in mind that the integrity bill allows for the deregistration of a part of an organisation that’s exhibiting the unlawfulness – the type of unlawfulness they’re talking about is the type of unlawfulness you’re seeing at the level of the CFMEU.
And indeed, they’d have to re-engage in that unlawfulness into the future. So minor infractions, they’re never going to get to the standard of deregistration. However, I’m having very constructive discussions with both Centre Alliance through Rex Patrick and with Jacqui Lambie, so we’re talking about ideas that they have on points of drafting and that process is ongoing. But this bill is about trying to establish basic standards on construction sites. And at the moment, the failure to have the ability to enforce those basic standards on construction sites is increasing the cost of infrastructure to Australian purchasers and taxpayers by around 30 per cent. That can’t go on.
QUESTION: Minister – Minister, did security agencies warn about pre-selecting Gladys Liu…why won’t she stand up in Parliament to explain her position and does she still have the confidence in government?
ATTORNEY-GENERAL: So look, I can repeat what the Prime Minister has said: is that there is a golden, consistently observed rule that Ministers and the Prime Minister will not give acknowledgement of things that may or may not have been provided to us by security agencies. We just don’t do it. We don’t ever do it. Now the unfortunate fact of that is that when someone raises a question about whether a thing has been said or not said or received or not received, the fact that we can’t, don’t and never answer that question obviously casts a shadow, right? But that is a very, very unfair thing for the person – the subject of the question. So, we don’t answer questions about ASIO. In the circumstances that you’re describing, the only reason those questions are being asked is to try and have a shadow cast, and it’s a thoroughly poor thing to do and I’m deeply uncomfortable with it, I’ve got to say.
QUESTION: Why didn’t she give a speech then, give a speech to the Parliament?
ATTORNEY-GENERAL: Well, she’s provided a thoroughgoing statement. If there’s something …
QUESTION: It’s not the same though, is it?
ATTORNEY-GENERAL: Well it- a speech is different from a written statement, sure. But they both contain an explanation as to the matters. Now, if there’s a particular part of that explanation that anyone’s got a difficulty with, I’ll do my best to reconcile that for you. But simply saying that we’d rather it’s said than written I don’t find very compelling.
QUESTION: Minister, just on your wage theft paper, you’ve said that only ongoing, intentional and systematic wage theft will be criminalised. Are employers going to be able to wipe their hands if they are able to say oh, my HR department is looking after that – I didn’t know?
ATTORNEY-GENERAL: Well, you’re talking there I guess about the distinction between standards of extreme recklessness and knowledge at criminal law. Now, how you draw that line is precisely the question that we’re asking people to submit on. But what we think is that it is a complicated system; there are 122 awards, there are employers who transgress in the terms of underpayment who self-declare, do it quickly – they might be minor amounts of underpayment, they pay it back very quickly, they otherwise have a great relationship with their employees. And there’s got to be a distinction between those types of situations, which are the overwhelming majority of situations, and those types of situations where it’s a very large amount of underpayment. It’s gone on over a sustained period where there is a level of knowledge about the underpayment which is very, very high so that there is knowingness about the underpayment or that that can be inferred from all the circumstances. So, in any other area where you’re criminalising something, what you’ve just raised is obviously a very important question, but we are seeking submissions on precisely that question. But it would have to be to represent the same type of process that exists on other criminal sanctions. It’d have to be a very high mental element to the offence.
QUESTION: Is George Calombaris – his company self-declared but it was a large amount of money, would that be covered by…?
ATTORNEY-GENERAL: Well, I’m not here to make individual statements around individual matters. But self-declaration and knowing that something had happened are not mutually exclusive things. And so, in those types of situations, you’d be looking at all of the circumstances either to directly show or to propose a reasonable inference that someone actually knew that they were doing the wrong thing. And ultimately, I think most Australians would think that a criminal sanction applies, where the person who does the act, does it knowing that they’re doing the wrong thing.
QUESTION: Minister, just in relation to the new terror rules that the Government is going to introduce, why are pushing back the conviction date threshold to 2013 rather than 2015?
ATTORNEY-GENERAL: Well, there are – you might need to get the technical reason from that from the Home Affairs Minister, but the reason we’re trying to push it back as far as we administratively and legally can is because we think that’s in the best interests of the safety of the Australian people.
QUESTION: Moving that conviction sentence threshold to three years, is that a concession that your plans to move it to zero went too far?
ATTORNEY-GENERAL: Well, there are technical legal reasons around that that the Home Affairs Minister can explain and that’s based on advice that we’ve received. But we’ve basically moved it as far as we think that we are able to legally.
QUESTION: You talked about the benefit of incremental reform and sledged big-system reviews, but the Government still hasn’t responded to all the ideas the Productivity Commission had for the industrial relations system in 2015. Can you just tell us what the status of that is and has the Government rejected those?
ATTORNEY-GENERAL: But they’re reports to government. There’s lots of recommendations just as there are in the Australian Law Reform Commission’s report into the family law system. Many of those things you’ll see put into discussion papers, where the Government hasn’t had a final view on the matter. But what I’m trying to achieve here is not the global, all issues at once approach, which hasn’t proved very successful in the industrial relations landscape. But when I talk to stakeholders, they are constantly identifying the same subset of 14 or 16 different problems, and it seems to me that each problem is different from the next and trying to have a discussion about all those problems at once, which sometimes happens in those larger Productivity Commission type reports, doesn’t actually get you where you want to be. So, this is issue by issue, case by case greenfields agreements to start off with, which is very important, potentially criminal penalties, in terms of enforcement of standards in regard to the underpayment issue. Very important. There’ll be more to come but this is a step by step, case by case analysis.
QUESTION: Minister, you spoke favourably earlier about the SDA and its relationship with its employers. This is a union that’s had a number of agreements thrown out by the Fair Work Commission for failing the BOOT test. Is the sort of IR system that you’re looking for one where unions never take industrial action and workers are left worse off?
ATTORNEY-GENERAL: Of course not. Is there anything in that 3500-word speech that gave you any suggestion that that’s the view that I have? If you can nominate one part of the speech that would suggest that I hold that view, I’ll answer it. But I mean, of course not. I mean, what we’re trying to do and the whole point about the SDA is that it’s a union that seems generally speaking to work very well with the large employers in that sector. That’s not to say that they don’t always agree. That’s not to say that at times, there might be arguments in front of the Fair Work Commission about provisions in an enterprise agreement. But when you compare relationships between employers and employees in that retail, hospitality, fast food space to what’s going on, on construction sites, it’s chalk and cheese. And the construction site unlawfulness costs Australians up to 30 per cent more for their infrastructure, which is why we’ve got those two bills in Parliament to deal with that now.
One more question and I’ve got to head back to the-
QUESTION: You said you want to put upward pressure on wages and the union that you nominate who has the best case example has actively traded off penalty rates and left workers worse off.
ATTORNEY-GENERAL: I don’t…
QUESTION: ….are workers going to be better off as a result of ….
ATTORNEY-GENERAL: I certainly don’t think that the SDA would agree with your assessment is the overall result of their engagement with the employer organisations in that sector. But the point I’m making is that in a system, it is complicated and it involves different points of views having to be conciliated and pushed through a larger decision making body like the FWC – in that sector, it exhibits the type of levels of cooperation that you don’t see in the construction sector. So, I’m not saying that sector’s perfect – far from it. But considering how much better it is than the behaviour that’s going on, on construction sites, where you’ve got the CFMEU shutting down construction sites for an entire day based on a faked safety concern, I mean, that’s what we’re actually dealing with here. And there’s a whole range of other sectors that exhibit practices that are far superior to that. Admittedly, that is a terrible low base that has to be fixed.