
Issue No 53		12 May 2000

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Interview

The Fruitful Shaw

Interview with Peter Lewis

After ten years in Parliament, NSW Industrial Relations Minister Jeff Shaw looks at some mountains still to be climbed.

You've moved from a position a few years ago where you were the only Labor State, to one where you have got a few friends now. How has that changed the dynamics of Commonwealth/State relations?

It's not so lonesome. It really means that there is a good camaraderie between the Labor States and there is a good working relationship with Queensland, Victoria and Tasmania and ourselves. It certainly puts the conservative voices much more on the defensive than they were in my first ministerial meetings back in 1995.

How is that play out in practical terms? Are you able to get issues up in that sort of forum and does that mean anything?

I think you get a better hearing from the Federal Government, partly just by strength of numbers and partly because the Federal Government knows that Labor States either have moved or are moving towards a more regulated system of conciliation and arbitration to deal with wages and conditions. And Mr Reith now has to face that political reality.

It also takes practical pressure away from NSW in the sense that while we were an isolated Labor State the argument could always be run that because of greater regulation; because of the award system in NSW, labour costs would be greater and therefore the State would in some way suffer a detriment(?) Now, I never accepted that argument as a matter of economics, but it was an argument which could be run politically, and which some commentators did in fact articulate.

It seems that some of the States have gone beyond NSW now. The Queensland Act, for instance, has greater protections for contractors. Is it the case now that other States are pushing boundaries?

Yes. I think it is fair to say that Queensland legislation is essentially modelled on what we did in New South Wales in 1996, but there are some innovations, pushing the boundaries a little further that are very much worthwhile looking at in NSW and we are in fact looking at them.

It's been 12 months since the listed IR reform proposal has come up to you from the unions. What's happened to that?

The government has taken some in principle decisions about some legislative changes to the industrial relations framework, which I think could be reasonably described as mostly fine tuning, but there are some issues of great substance there and I can say that my Department is working with the Parliamentary Council on a legislative package of further changes to the Industrial Relations Act. Obviously once that package is available in detail there will need to be some more consultation with the employers and the trade union movement, although I would argue that in reality we have thrashed those issues out in great detail at consultative committee. Nonetheless, I think the employers and the unions are entitled to have a look at the finer detail of what we propose to put to the parliament.

What about some of the big ticket items like regulation of labour hire which the Premier's flagged is going to require complimentary legislation in other States so that NSW isn't left hanging on a limb. Is that process going forward at the moment?

The process that's being formulated is to have a thorough enquiry into the legal and practical industrial position of labour hire companies involving the trade union movement and employers. It's a complicated issue. There are questions as to who in law is the employer. There are questions as to which entity bears the responsibility for workers compensation premiums and for occupational health and safety regulation and there are questions as to which award applies to the worker who is in effect seconded out from a labour hire company to some other enterprise.

These are tricky questions. I don't believe that any jurisdiction in Australia has grappled with them, so the way forward I believe is to have a thorough or a hopefully expeditious enquiry into it, to come up with a few answers - preferably consensual.

What sort of time line would you want to be looking at on something like that, given that a lot of people are hurting out there now?

I would want to have an enquiry started very shortly and completed in about three months.

So, you would be looking at some sort of action later this year?

Yes.

What about the issue of the service fees to union members. I know the Premier has been fairly cold on that but we haven't heard back one way or the other. Is that something that can be moved on there?

I think the Premier's public statements probably go beyond being fairly cold and could be said to be negative about the issue and I think it's therefore stating the obvious that I don't think it is a proposition that has good prospects of success.

Where do you see the unions going on this? The Living Wage Case came down this week - literally with a pay rise of 1.7 million workers. Another 1.1 million will get a flow on in NSW. That's 2.8 million workers getting a pay rise via the ACTU case, yet there are fewer than two million union members in the movement. So there's a lot of people free loading. What should the unions be doing to get the people that are getting the pay rises at the expense of the unions to do something.

It's always been the case that basic wage increases or indexation based increases achieved by the trade union movement have flowed on to workers who are not members of the relevant trade union. I have no doubt the position has been exacerbated by the decline in union membership in more recent years. But in principle, that has always happened.

I think there are strategies that could be adopted, but I don't think it's really my role to give gratuitous advice. I think it probably wouldn't be well received because my competence as to how a union should organise its affairs, is much less than many of the trade leaders.

Let's look at another issue: office e-mails and the unions' right to having access to the workplace. Unions have put up a proposition that this should go forward in much the same way as say video surveillance in the workplace. Are you amenable to that sort of concept?

First of all, I think there is a genuine privacy issue so far as employees are concerned. It's rather similar to - analogous to personal telephone calls that people might get at work from family or friends. So I accept there is a substantive issue of whether it needs to be looked at.

My first response was to say that it's part and parcel of a reference that's before the NSW Law Reform Commission about surveillance generally. The Labor Council has argued with some justification that that process is likely to be too slow. So, I think there are two possibilities. Either I could ask the Law Reform Commission to accelerate that particular aspect of its deliberations, or I could simply ask the Department to formulate a separate proposal about e-mails at work. And in fact I have asked the Department of Industrial Relations to do some at least preliminary work on what are the options, what are the models that could be adopted to deal with the problems that Labor Council has raised.

Yes. The Law Reform Commission does extraordinarily impressive work. The reports it produces are academically outstanding and thoroughly researched and footnoted and so on, but it is legitimate for interest groups to say that they tend to take a long time. That is fair comment. So, it is a question of balance.

There are some issues of course, that are quintessentially appropriate for the Law Reform Commission. I have accepted in what I have already said that this may be one that has to be taken out of that context and it may be that government should act on that in advance of the Law Reform Commission Report.

Another change in your responsibilities in recent months has been the responsibility for the WorkCover scheme has been handed over to John Della Bosca. Given that the unions have always regarded you as a great friend in terms of the reform process, should we be preparing for a bit of a harder stick now to be taken to WorkCover?

No, I don't believe so. I think my colleague, John Della Bosca, is a very balanced and reasonable Cabinet Minister and I have every confidence that he will be able to deal with the issue in a way which will essentially mean that there won't be any ructions with the trade union movement. John will be dealing with the workers compensation system. I will continue to deal with a large section of WorkCover's activities, that is, occupational health and safety, the 301 inspectors - that number will be made up by an additional 25 inspectors that we have announced that we will be appointing shortly. And of course the question of prosecution of people for breaches of the Occupational Health and Safety Act will be something I will still be responsible for.

Having now moved a step away from the scheme, do you think that there is anything more that could have been done under your stewardship?

I think there probably were further things that could have been done and there are further things that can be done now. It would have been difficult to sustain an argument that nothing else could have been done, but the fact is there were a number of substantial reform packages, basically negotiated through with the unions and the employers.

I think that the Consultative Committee about workers compensation has worked pretty well. It has certainly found a lot of common ground between the trade union movement and the employers, and there is a good spirit of cooperation there in that committee. And that I believe, was a good innovation.

Finally, there was a bit of discussion earlier this year about how long you would be staying in Parliament and you have made the statement I think, that you are around for the foreseeable future at least, although you have said you are not going to be re-contesting your seat in 2007. What is there about that State politics that still excites you, and what do you really want to achieve over the next few years?

There is a constant opportunity for law reform, both in the civil and criminal law area. I enjoy playing a managerial role in relation to the court systems and with the heads of jurisdiction, clearing up as we have done, the civil list in the District Court; reducing the backlog of criminal cases. That remains a challenge. It's a challenge that won't go away because it's not something that you can simply complete.

But there are further areas of law reform that I think will be interesting in the future. And I have already spoken about the adjustments to the industrial relations legislative framework. I don't want to be skiting about it, but I think it is fair comment that that system we have set up in NSW has had extraordinarily broad support from an amazing variety of quarters, and if we can keep that on the rails and make some key, tactical improvements to it, then I think that will remain a job worth doing.

The employment market is changing so quickly, is it enough for the system just to be making incremental changes or do you see on the horizon some far more significant changes coming along? I am thinking particularly about the whole nature of work changing, and people working casually job-to-job. Are there other bigger issues that you see coming up over the next couple of years?

Yes. There are bigger issues and we have spoken about one of them with labour hire companies' position. That's difficult to tackle, and also the variety of non-employment work by contractors or partnerships or other varieties. Our traditional system hasn't tackled those, so I think that does remain a challenge for the future. To see how you can have, what I think is inevitably a more diverse variety of forms of work and yet still have a sense of fairness injected by State intervention.

No doubt our conservative opponents would say that that ought to be left to the labour market and that it would all work out. But I think that even in forms of non-employment there is a role for legislative intervention to ensure equity and decent treatment of working people.

The classical example in NSW is the way in which we have for quite some years now regulated owner-drivers in the transport industry. Non-employees, independent contractors, and yet who would seriously argue that they should simply be left to the forces of the market. If that were the case, if we didn't have contract determinations for those lorry owner-drivers, there would undoubtedly be exploitation.

Do you see that sort of concept expanding out over time?

Yes. I think that provides a model that can be used to cover other areas of contractors.

Another area that has been discussed is an adaptation is the notion of mobile long service leave in the building industry. Is that something that we should be looking at expanding across to other casual and precarious forms of employment? A little bag of long service leave that you take from job to job?

I think that is a precedent that is useful and maybe has an application to other series of work activity. You could of course argue that at the time when that scheme was set up building workers, by the sheer nature of the industry, would never be entitled to long service leave unless there was some industry fund. But it proved useful and effective and non-controversial.

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Issue 53 contents

Interview: The Fruitful Shaw
After ten years in Parliament, NSW Industrial Relations Minister Jeff Shaw looks at some mountains still to be climbed.

Politics: Budget in Reply
Opposition Leader Kim Beazley replies to the Federal budget and paints Labor's alternative vision for the future.

Economics: Petition to Move a Mountain
A child born in Zambia or Tanzania or Bolivia owes more to international creditors than she or he will ever earn in a lifetime.

International: Solidarity in a Cold Climate
After an overnight bargaining marathon, Norway's unions have secured most of their main demands and have now ended their nationwide strike.

Health: Workers Health Centre Comes of Age
In 2001, the Workers Health Centre will celebrate its 25th anniversary, making it the longest running independent trade union based health and safety service in the country.

History: A Tribute to the Fallen
A Canadian tractor operator is seeking help to produce a book on monuments to people killed in the workplace.

Satire: Ralph Web Ring Busted
Following the dismissal of 27 Telstra employees last week for downloading hardcore pornography on their work computers, Ralph magazine sacked five employees yesterday for downloading positive images of women.

Review: Waterfront - Through the Reporters' Eyes
Fairfax journalists Helen Trinca and Anne Davies have skillfully transformed the waterfront war into the sort of thriller that any self-respecting Hollywood mogul would reject for being too wild to be true.

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