March 21, 2017

PETER VAN ONSELEN: I am joined by the Shadow Minister for Employment and Work Place Relations, Brendan O’Connor, live from the nation’s capital. Thanks for your company.


VAN ONSELEN: So much to talk about in your portfolio which we will get to, but I’ve got to ask you about this 18C development. The Government wants to replace ‘offend, insult, and humiliate’ with ‘harass’. Why does Labor want people to be allowed to harass people based on their race?

O’CONNOR: Well I think the Government really wants to give licence for people to insult, offend and humiliate. The fact is that we don’t believe in watering down the race hate laws. They have been in place for many, many years. They have worked well for people who are more likely to be subject to such offenses, and we think a balance is struck, particularly when you look at the section 18C and 18D in its entirety.
This has been an obsession from within the Liberal Party, of course Malcolm Turnbull is seeking to appease his right wing. He has Tony Abbott acting like a Prime Minister in exile, critiquing everything he does, and this is one area – as you said yourself, quite paradoxically – the Prime Minister is being lauded by Tony Abbott. Of course Tony Abbott even knew that he had to back off.
I think it’s a mistake to water down the laws. Labor thinks it’s a mistake. Obviously we will resist these changes.

VAN ONSELEN: Well just on my take on this – I’d love to get your view. I am a little cynical – because this is going to the Senate first, that this is Malcolm Turnbull trying to appease the conservative forces within his own party by making these changes to ‘offend, insult and humiliate’ replacing them with ‘harass’ without the likelihood that it will ever actually happen because Nick Xenophon’s party will knock it on the head in the Senate. Then they will bring it to the lower house – which Labor will then have to think about in isolation those procedural changes to the Human Rights Commission. Where will Labor sit on those procedural changes?
If I am right, and if the Senate knocks out what those half a dozen Liberal back benchers expressed concerns about in the party room, will Labor be open to those procedural changes to the Human Rights Commission? Because it does seem that there is a problem there, if not with 18C, surely, given the QUT and of course the Bill Leak as well.

O’CONNOR: My main concern is the watering down of the provisions that protect people against such speech, that’s the main concern. I’d have to look closely at the procedural changes that might be proposed. I think that Labor would at least look at them. It may be that our appropriate Shadow Minister has done such already.
I think you can sometimes re-examine the way in which institutions work and improve them in terms of making sure there’s the right balance between the effect of provisions, natural justice, due diligence, as to how these matters proceed. So I am more relaxed about that examination.
My concern and Labor’s concern in particular, Peter, is diluting protections that have been in place for decades, and in some ways sanctioning or licencing insults, offence, and humiliation towards particular groups in our society. I just don’t see why that would be firstly such a priority for the Government, and why it would be a dream of some of the members of the Government.

VAN ONSELEN: Well the debate will now rage, now that we have the party position. We will see where it goes.
Now, back to your portfolio though if we can, Brendan O’Connor. I am keen to know what the Oppositions response is going to be to the announcement yesterday from the Government that it wants to seek legislative change in order to improve disclosure around what goes on with union and employer negotiations. Are you up for what they’re proposing?

O’CONNOR: Well there are two separate things. There is no way you can actually change the Award by virtue of an enterprise agreement without it being a public document, without it being filed in the Commission, without it passing certain laws, including the Better Off Overall Test. If there are any deficiencies with enterprise agreements Peter, as a result of the failing to comply with the law, that’s firstly a failure by the Fair Work Commission to apply the law properly not withstanding what the parties might seek to do. But there is no such possibility, there is no lawful capacity, for unions and employers to enter into arrangements and sign them off without a third party overseeing them, following them and making sure they do comply with the law.
Insofar as any corruption is concerned, Minister Cash, in the debate she and I had during the election campaign last year, started referring to the corruption and she made a reference to Coles acting in a corrupt manner. Now if she’s got evidence that companies or CEOs of companies are attempting to bribe union officials or workers to get better deals, I think she should present that evidence.
We have no tolerance for corruption and I can assure you if it’s about stamping out any corruption I’d be very much up for that. But let’s be honest Peter, it is largely to distract the media and others and the public from the bigger focus which is we have a Bill before the Parliament that can prevent the effect of the penalty rates decision, to stop the cuts to those 700,000 workers and the Government doesn’t want to talk about that matter, it wants to talk about other matters.

VAN ONSELEN: Well just on that, why is it acceptable to trade away penalty rates in EBAs even if some workers but not all, let’s be honest, if some workers get something back for that in the collective, why is that ok but then Labor is so strong on no changes to penalty rates vis-à-vis the Fair Work Commission decision because not all workers in an EBA do get those benefits? If you only work on weekends for example you don’t get the uplift that might otherwise exist for Monday to Friday workers.

O’CONNOR: Look, I’m happy to examine the application of the test. It was only Malcom Turnbull who abolished the test when he voted for WorkChoices. There was no test, penalty rates ripped away, there was no compensation. Now what we have said is the test ensures there is compensation. The argument that you raise, is there anyone in a workplace that may not be better off overall.
Well if the Government really wants to fix this we could examine the way the test applies. But their record, Peter, is that they want to abolish the No Disadvantage Test, in fact they did abolish it and they introduced WorkChoices. Now if you think that we need to look at the way the test applies so it applies in every instance to every individual of a thousand employees, where there might be ten affected that may not benefit overall, then I am happy to examine that. I just don’t think the Government is really interested in doing that. But if they are, I am up for it.

VAN ONSELEN: I’m sure they’re not, but this is my question, I don’t doubt they’re not, I just wonder about it because I hear Labor, very powerfully make the case why it opposes the Fair Work Commission on penalty rates because you get nothing back for it, it is just a wage cut. I think it is political poison for the Government to be supporting it whatever you think of the policy scripts. However I then see these EBAs which do trade away penalty rates, and that might be good for Monday to Friday workers but there are a lot of people that only work Saturday and Sunday shifts, like the people that the Opposition Leader has wheeled out, I think with you, who only work weekends and therefore rely on their penalty rates away from an EBA. So I just wonder why that’s ok, to trade them away for the collective good of Monday to Friday workers?

O’CONNOR: So firstly, let’s remember there is compensation - it goes both to monetary and other forms. For example, people who are working on weekends would get minimum guaranteed hours, they get nothing otherwise. People might get for example other forms of leave entitlements which they wouldn’t get. They may also get access to other benefits or other conditions of employment. It’s not as simple to say that it’s about the rate and the penalty – it’s broader than that.
But again I make the point that I am very happy to examine the test. In fact, given the focus on some agreements where people have not done as well as they might have, then let’s examine the test to see if it’s fair.
But that’s does not in any way justify the cutting of real income for the lowest paid in Australia. The Awards are effectively industry minima. Cutting their wages – and by the way the impact will also mean for every other worker – which is about 9 million workers on Enterprise Agreements -  they will have a lower test in the future. So all of those workers that are on Enterprise Agreements now, if their awards change for the worse, it means their test falls. So it doesn’t just apply to the people on Awards, it will apply to the people on Enterprise Agreements over time. That is the bigger issue.
But if you think we should – I agree with you that if we need to examine the test, let’s examine it. But the intention of the test was to always make sure people were better off over all. And that was its intension. It was put back after it was abolished by the Howard Government, and supported by Malcolm Turnbull.

VAN ONSELEN: Can I ask you just finally Brendan O’Connor about Sally McManus. I know that she has distanced herself from those initial comments that she made, and Bill Shorten equally said he doesn’t agree with this notion that if there’s an unjust law you can break it – he believes in changing the law.
Can I come at this on the other side of this – what is wrong with breaking an unjust law? So for example, on building sites, if union representatives are not permitted with a certainty amount of notice to enter, but they can see safety issues on that work site, why shouldn’t they do what Sally McManus says and be prepared to break the law in the name of safety?

O’CONNOR: Look, I think in the end individuals will have to make up their mind. I think the general principle though is that in a democracy where we can change the law by changing the government, and passing laws through the parliament, it is hard to support the proposition that the best approach to changing unjust laws is to resist them. The best way is to –

VAN ONSELEN: But surely there are times that you have to. I mean I get politically what’s going on here, the Government is trying to wed those remarks to the Labor Party, and your side are trying to avoid it. But I’m just being frank about it. Surely there are times?

O’CONNOR: Yeah, look, sure. And there is a whole range of things individuals have done, whether you talk about the grey areas of euthanasia for example. Let’s be very honest here for a moment about that issue, and what General Practitioners, and what family members may have had to confront in relation to that matter. So, everyone who has got a brain in their head knows that these issues are more complex.
But I say as a general principle, and as a parliamentarian, as someone who believes in democracy, my first response to that proposition is - lets change the law. That’s not to say individuals will not make a decision on occasion – whether it’s because their life is at risk, or because they are going to ensure that a family member dies with as little pain as possible. Let’s not pretend that people aren’t confronted with this reality, in so many ways, and in so many areas of our society.
And so, I think it is more complex but, again as I say. if we were an apartheid state, we just couldn’t change the government. 90% of the people were disenfranchised. But I think in a democracy, the rule of law matters.
Individuals need to make their own decisions as to what they do about an unjust law. But as a parliamentarian, generally speaking, of course you should look to change the law through the parliament – because in democratic countries that is the best approach.

VAN ONSELEN: Brendan O’Connor we appreciate your time as always, we know you gotta go, thank you for your company.

O’CONNOR: Thanks Peter.