Road Safety Remuneration Bill 2011

Mr Fletcher (Bradfield) (12:13): I am pleased to rise to speak on this extensive list of amendments which has been put to the House by the Minister for Employment and Workplace Relations at very short notice and to ask whether the process that is being pursued here in relation to this very substantial change in the regulatory scheme embodied in this bill is one that the House ought to agree to when the effort that has been made to explain the policy rationale for it is threadbare.

There is naturally a suspicion in the case of this minister that he is dancing to the tune of his union masters. There is naturally a suspicion that the primary motive for this amendment is to address the legislative and regulatory ambitions and agenda of the union movement. That suspicion can only be enhanced by the shocking process which has been demonstrated in the way that these detailed amendments have been put before the House, because these amendments fundamentally change the regulatory and legislative scheme that the House is considering. They are a fundamental change to what has been put to the House as a measure about road safety. Objective observers have doubted whether that is a fair claim, and those doubts are now revealed to be absolutely valid based upon the fundamental change in the scope and breadth and the reach of the work of this new tribunal.

What we now learn is that this is a tribunal which is going to have a very substantive industrial relations agenda and a very broad reach. What we are now told is that no collective agreement in this sector will be valid or will be legal unless it is approved by this tribunal. All of the pretence that this has something to do with road safety has now gone out of the window. We now learn at very short notice—although these amendments, we understand, have been available to the government for a considerable period of time, they have been dumped on the chamber at very short notice—is that their affect and their intention is to greatly broaden the reach of this tribunal, greatly broaden the breadth of the matters not only in which it has a right to engage itself but also over which it has the right to exercise a veto. That is the fundamental point here in the provisions that the House is being asked to consider as we weigh up the merits of the amendments which have just been tabled by the minister.

We then asked, amongst other things, to consider whether it is good policy for this tribunal to have a right of veto over any so-called road transport collective agreement, having regard particularly to the very expansive definition of 'road transport collective agreement'. This is an exercise in the expansion of the reach of government and the reach of the industrial supervisory mechanism and administration for which this government has such fondness, based no doubt upon the background of almost every member of this government, emerging as they do from deep within the industrial relations machine which has for so long been a powerful part of our nation, in many ways to its detriment.

The provisions which have been put before the House this afternoon should only be supported if the government can discharge the burden of proof that these new arrangements, giving this tribunal an expansive power to veto any collective agreement in the road transport sector, achieve in some way an objective of road safety. As with the substantive bill, they have not been able to discharge that burden—they have not even sought to. On that basis I will not be supporting these amendments. (Time expired)

Mr Fletcher: (Bradfield) (12:39): I rise to speak further about the amendments which have been put before the House today. The process by which these amendments have been brought forward is, on any view, lamentable. It is disgraceful. It shows a contempt for the democratic processes in the people's House. I am sorry to say that it is entirely consistent with the consistent contempt for process—

The DEPUTY SPEAKER: Order! The honourable member for Bradfield will debate the amendments that are before the House, not the process.

Mr Fletcher: Mr Deputy Speaker Adams, the basis on which the amendments arrived before the House is absolutely a matter the House should be considering in assessing the merits of passing the amendments. If sufficient time has not been provided to consider very complex changes then that—

The DEPUTY SPEAKER: Order! The parliament is discussing the Road Safety and Remuneration Bill 2011 and there are 64 amendments. The member will address the amendments as a whole and will not discuss matters outside that tight area which is before the House.

Mr Fletcher: I want to go to the differences between the definition of 'road transport collective agreement', which appears in clause 33(2) of the bill, and clause 33, which appears in the amendments. There are some significant differences—differences which I think the House ought to consider very carefully before it is prepared to agree to this amendment.

One of the questions that strikes me as an obvious one, when you look at the wording of proposed clause 33, is the question of whether individual drivers need to be aware that there are other drivers who have also contracted with the hiring party. On my review of the term 'road transport collective agreement' as it is contained in clause 33, it strikes me as entirely possible that you might have a situation in which a hiring party issues a tender calling for parties wishing to drive under a contract for the hiring organisation. They accept the terms which are issued but, because there is more than one driver who has accepted those terms, it automatically becomes a road transport collective agreement, even though there is no collective intention or state of mind between the individual drivers.

I invite the minister to respond and explain to me whether that interpretation is correct or not and, if it is not, to give me assurances as to why it is not. If that interpretation is correct we have here the long hand of the extensive and growing, intrusive industrial relations governance apparatus of this Rudd-Gillard government reaching into yet another area of economic activity, where hitherto individual business entities—people such as truck drivers—have been free to carry out their businesses without the unnecessary overweening bureaucratic supervision of yet another instrumentality of this collectivist and interventionist government. By virtue of the drafting of proposed clause 33 we now have the extension of the scope of the activities of this tribunal into commercial arrangements which may very well be made, as far as an individual driver is concerned, on an individual basis with a hiring party, but, because of the drafting, he or she suddenly finds that they are caught up, quite to their surprise, in what is deemed to be a road transport collective agreement, and then that agreement cannot proceed unless it has been compulsorily considered by this tribunal.

That is a very serious matter of public policy. It is a significant interference in the freedom of contract, and the House ought to consider that very carefully.

Mr Fletcher (Bradfield) (12:49): I rise to make an additional contribution on the merits or otherwise of the 64 amendments in relation to the Road Safety Remuneration Bill which have been put before the House at very short notice. I want to consider the amendments against the backdrop of the short title of the bill, being:

A Bill for an Act to make provision in relation to remuneration-related matters to improve safety in the road transport industry, and for related purposes

Against that backdrop I want to ask this question: why do the new provisions which are being put before the House for consideration this afternoon make very little reference to safety and do not even attempt to maintain the merest fiction that they have something to do with safety? Say we look, for example, at new clause 32A, which is proposed to be added to the bill. Clause32A(1) says 'the tribunal may approve a road transport collective agreement'. Clause 32A(2) says:

… In deciding whether to approve a road transport collective agreement, the Tribunal may have regard to whether the benefit of approving the agreement would outweigh the detriment to the public constituted by any lessening of competition …

I particularly direct your attention, Mr Deputy Speaker, to the fact that nowhere in clause 32A(2) does the word 'safety' appear. Nowhere in clause 32A(2) is any attempt made to frame the considerations which the tribunal must have regard to such that they are limited to safety or such that safety is defined to be the primary consideration which the tribunal must bring to bear as it weighs up the benefit it finds in the agreement against such detriment as it identifies. I think that is very significant because it demonstrates that in this set of amendments, particularly including proposed clause 32A, any pretence that this is about safety has been thrown out the window because of the enthusiasm with which this minister is rushing to urge the parliament to extend the reach and scope of the extensive industrial regulatory apparatus which this government has so enthusiastically expanded. It is interesting, too, to look at clause 36 in amendment (35) of the 64 amendments which have been put before the House at such short notice. It reads:

The participating hirer in relation to an approved road transport collective agreement must not provide remuneration or related conditions, to a contractor driver who is providing applicable services to the participating hirer, that are less beneficial than the remuneration or related conditions specified in the agreement.

Where is the language about safety? Where is the express direction to the tribunal to consider safety? Where is the restriction on the conduct of the participating hirer in relation to safety? It is not there. There is nothing about safety in that particular clause. That clause is a perfectly straightforward, stock-standard piece of industrial regulatory machinery dealing with remuneration and related matters. It again demonstrates that these amendments take this bill even further from its claimed objective, its claimed purpose and its claimed policy intention of dealing with road safety. It puts this bill squarely into the territory of expanding the reach of the industrial regulatory apparatus of this government and squarely into the territory of seeking to limit the freedom of individual businesses to contract, including in the truck-driving sector.

Mr Fletcher (Bradfield) (13:18): I rise to make a further contribution in relation to the merits or otherwise of the 64 amendments that have been provided to the House at very short notice by the Minister for Employment and Workplace Relations. Again I want to come to the question of the merits of the provisions proposed to be added to the bill dealing with the authorisation of conduct which would otherwise be anticompetitive. I am referring to the provisions of proposed clause 37A. Mr Deputy Speaker, I would also like to take you to proposed clause 32A. You will notice that under clause 32A(2) the tribunal is to weigh up the benefit of the agreement against any 'detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the Tribunal approved the agreement'. So we have the tribunal charged with the task of assessing the impact of a particular agreement on competition.

As you will have noticed, Mr Deputy Speaker, the language in proposed clause 37A is quite specific. It says:

(2) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, entry into an approval-pending road transport collective agreement … is specified in and specifically authorised by this Act.

The point is that it refers specifically to an approval-pending road transport collective agreement. If you go back to proposed clause 32A, you will recognise immediately that what is referred to here is an agreement that is pending approval by the tribunal. If the tribunal approves the agreement it is automatically authorised by reason of the operation of proposed clause 37A.

This raises a number of serious policy issues. One of them is this: what are the qualifications of members of the Road Safety Remuneration Tribunal to deal with the issue of the impact of a collective agreement on competition? Clause 79 of the bill describes the composition of the tribunal. Clause 79(2) states:

The Tribunal consists of:

(a) the President; and

(b) at least 2 and no more than 4 persons who are experienced in workplace relations matters; and

(c) at least 2 and no more than 4 persons who have knowledge of, or experience in, one or more of the following fields …

None of those fields is competition law. None of those fields is the impact of collective agreements on competition. If the House were to accept these amendments—the 64 amendments moved by the minister at very short notice—and pass them into law a consequence would be that the tribunal would be put in the position of assessing the competition impacts of agreements in the road transport sector without having any expertise regarding such matters.

Mr Deputy Speaker, I need hardly remind you that competition law is specialised. It raises many difficult issues. An entire agency of the Australian government, the Australian Competition and Consumer Commission, deals with these issues. But it seems that this government has not seen fit to make provision for persons with such expertise to sit on the tribunal, even though the powers of the tribunal have been expanded to weigh up the merits of an agreement against any detrimental consequences to competition that might follow. I might add that taking the overall policy scheme under which road transport collective agreements are specifically authorised outside the operation of the Competition and Consumer Act is very bad policy. It is the kind of policy that we have come to expect from a government that has no commitment to competition. It has white-anted it in telecommunications and it is white-anting it here.

Mr Fletcher (Bradfield) (12:59): I rise to speak further about the merits or otherwise of the 64 detailed amendments which have been provided to the House at very short notice and which appear to have the effect of substantially expanding the scope of operations of the Road Safety Remuneration Tribunal and which make it clear that this is really about industrial matters and that all pretence at dealing with safety has been thrown out of the window.

One of the matters which raises very grave concerns from the point of view of public policy is the impact of these arrangements on competition. I am referring particularly to clause 37A of the amendments and of the new bill if the amendments take effect. Clause 37A is headed 'Authorisation of conduct for the purposes of the Competition and Consumer Act 2010'. Let us remind ourselves what the Competition and Consumer Act does. The Competition and Consumer Act, previously known and perhaps still better known as the Trade Practices Act, is intended to ensure that, in the conduct of business in Australia, the interests of consumers are maximised by maximising the force of competition. The whole idea is that you have companies and organisations and individuals in business competing with each other to the most vigorous extent possible with a view to delivering to customers, to end users and to ordinary Australians the lowest prices—

The DEPUTY SPEAKER ( Hon. DGH Adams ): Order!

Mr Fletcher: and the best quality of service. Mr Deputy Speaker, this is central to the question of the merits of proposed section 37A, 'Authorisation of conduct for the purposes of the Competition and Consumer Act 2010'. As is revealed by the inclusion of this provision in the bill, there is a fundamental tension between allowing the forces of competition to flourish in the interests of customers and end users and the collectivist mentality which underpins this bill.

The DEPUTY SPEAKER: Order! The honourable member will return to the matters before the House.

Mr Fletcher: Mr Deputy Speaker, I am discussing quite specifically clause 37A, 'Authorisation of conduct'—

The DEPUTY SPEAKER: Order! The matters before the House are 64 amendments. The honourable member will address the amendments before the House.

Mr Fletcher: Mr Deputy Speaker, clause 37A is amendment (40), and that is specifically and precisely what I am addressing in these remarks. The question—

The DEPUTY SPEAKER: Order! The honourable member will take directions from the chair. The honourable member will continue his comments by addressing the amendments before the House.

Mr Fletcher: Thank you, Mr Deputy Speaker. I am addressing amendment (40), which is headed: 'Clause 37A Authorisation of conduct for the purposes of the Competition and Consumer Act 2010'. The question I am suggesting the House ought consider very carefully as it considers whether or not it is a good idea to pass this amendment is whether it is a good idea to grant such an authorisation. Let us be very clear about this. The effect of such an authorisation is that conduct which would otherwise be illegal under the Competition and Consumer Act as a breach of provisions dealing with, for example, restraint of trade or anti-competitive agreements between competitors is specifically authorised by this provision. The question that that requires the House to consider is whether the detriment to competition, which is clearly admitted by the fact that the government has thought it necessary to include this amendment in the bill, is justified by the claimed benefit, which we are told has something to do with safety but which, upon analysis, is in fact a set of measures designed to extend the reach of the industrial regulatory apparatus which this government has been so enthusiastically expanding, measures which are going to make it harder for ordinary business people to get on and do their job.