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  Issue No 88 Official Organ of LaborNet 16 March 2001  

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Interview

Labor Law

Interview with Peter Lewis

Shadow Attorney General Robert McClelland outlines his plans for workers entitlements, legal aid and a Bill of Rights

 
 

We'll start off with entitlements. It really is a legal quagmire isn't it? And I guess for the average punter it is hard to understand why it is so hard just to give workers what should be their's?

Yes. It is impossible for a worker to pursue their entitlements. It is just far too expensive for them to get involved in tracing corporate structures and overlapping directorships, and who had ultimate control and all that sort of thing. It is just impossible, so once an individual worker loses their job they are in real strife, particularly if they are in the - really anyone over 40 now is in trouble getting re-employment. It can only be fixed by legislation.

You are actually proposing guarantee 100% coverage of all entitlements. How are you going to deliver that?

We have calculated - on expert advice I have got to say with actuaries and so forth - that a point one of one per cent levy, in addition to the superannuation levy, would guarantee worker entitlements. And indeed, we think we will ultimately do better than that because it will introduce laws that enable either the fund or workers or unions to pursue corporations higher up the corporate chain for the debts of their subsidiary companies when they go bust, if that subsidiary particularly was just simply a service company. The fund will be able to recover a lot of the monies that they pay over to workers. But basically what we are saying is, look workers haven't got the means to secure their entitlements; to spend two years fighting in court. They just haven't got the resources. Pay them first and then let the fund do the fighting.

And what about the argument that this is going to be and added cost to business, which is going to cost jobs? Have you done some costings on that?

It is such a fraction - point one of one per cent of their current payroll - that we don't think that it will have any real impact. From the point of view of businesses, all these expenses are themselves tax deductible, and on the other side of the coin, what you are seeing when the economy slows is a rapid reduction in consumer confidence and consumer spending - this month being a good example. The greatest decrease in 25 years in consumer confidence. A lot of that consumer apprehension is as a result of fear of losing jobs. So, we think if people feel secure in their employment - or if not secure in their employment - secure that they are going to secure their hard won entitlements, that they won't be so frightened when it looks like a recession.

So, it will be, maintaining if you like, consumer confidence importantly through the economy. So, we think it is not only sound from the point of view of principles for workers, but from the point of view of the economy as a whole maintaining that important level of consumer confidence.

Another area which has really changed over the last five years for unions has been the move from an industrial relations system that dealt with industrial disputation, to a push into the Federal court system - a legalisation if you like of IR. Is there anything you, as a prospective AG, can say to the unions in terms of this increasing intricacy of industrial law?

Well, it is. It is just atrocious isn't it, when for the first time for 100 years we are seeing the lock-out being used as a tactic. Look at Joy Manufacturing, where you had all kinds of interlocutory applications to try and stop the company's undermining of the collective bargaining process. It has been very, very difficult for unions and ultimately you have seen one of those interlocutory applications be set aside in the BHP case, after very, very complex, very expensive litigation involving Queens Counsel, where in the old days you would simply go down with a union advocate and say, look, this company is not negotiating in good faith. Very much the central plank I think it is fair to say of Labor's industrial relations strategy is to restore the role of the independent umpire in the Commission, and to get away from this Law of the Jungle situation where ... I regret in some ways being in Parliament, when it is such a gravy train out there for lawyers. But it is certainly not in workers' interests for that to continue.

So, you would like to see fewer cases ending up before the Full Bench of the Federal Court?

It is outrageous in this 21st Century that that is the situation. Paradoxically, despite the government wanting to undermine unions, it is the non-unionists who have been most disadvantaged by this system, because they just don't have the resources to run such complex cases.

Can I ask you also, one of the really big things that happened under the Howard Government which affect workers was the cuts to government legal aid. What are you planning on that?

That has been dramatic. Over the eight year budgeted period, it is a total of $404 million taken out of legal aid. That is dramatic. In the last year of Labor, for instance, it was $160 million spent on legal aid. This year under the Liberals, $105. So allowing for inflation, there is at least a $65 million shortfall.

In addition to that, there has been a cut in the budget in the Human Rights and Equal Opportunity Commission from $21 million to $14 million, with a consequent reduction in staff from 180 down to 120, so that has reduced their ability to pursue human rights issues.

These are matters which are directly relevant to the standard of living of Australians. For instance, legal aid was instrumental in residents of the South Coast beating insurance companies to get coverage for their flood damaged homes. Legal aid isn't just for people with minor criminal charges, it is very much for standard of living sort of matters.

So will you reverse those cuts and restore funding?

Yes we are. In terms of the final dollar figures, at this point out of the election cycle, we are not putting actual dollar figures on it until we see the colour of what is left over after they do it. So, we are not going to be irresponsible, we appreciate Legal Aid has to take its priority along with things as important as Health and Education, but we are committed to Legal Aid. And in fairness to Lindsay Tanner, who is the Shadow Finance Minister, he is also committed to restoring Legal Aid up to the funding level as soon as we possibly can.

Finally, Labor has got a proud tradition of activist Attorneys-General over the ages. What would you like to bring to the job in particular? What the burning passions for you in terms of law reform?

The three key ones I think is this issue of access to justice so that we can get ordinary Australians able to access the courts. I mean, even a middle income person - a legal case is really theoretical for them because they just can't fund it. So make the legal system relevant for people. That is vitally important.

The second area where a lot can be done - so much more can be done in cooperative federalism. I think it would be a relatively simple constitutional amendment to add an additional part to the Constitution that recognised State and Federal cooperative schemes.

Importantly, in the corporations law area; importantly in the trades practices area of consumer exploitation; importantly in the area of administrative review. Even going through a whole lot of things important to the economy. Property schemes in respect of gas pipelines; electricity networks; even sports drug enforcement. All these things are based on cooperative schemes which have been set asunder because of some unfortunate High Court decisions. They can be repaired pretty simply and I am meeting with the State Labor Attorneys-General next Friday to talk through some issues there.

So that is the second priority.

The third priority is a Bill of Rights. At least a statutory Charter of Rights. A Charter of Rights on living standards is something that we are particularly interested in, and certainly from the point of view we see its importance as vetting all legislation against these fundamental human rights principles such as: your right to decent education; the best level of health care - mental and physical; access to infrastructure, including technological infrastructure. If these sort of fundamental rights are included in a document against which all legislation is compared, it will do something legally to offset the influence of the Productivity Commission, whose whole economic rationalist agenda which looks at the black and white balance sheet - not how it affects people's lives.

Would you look at putting core labour standards there? I know globally there is now this push to have the right to organise, being recognised as a global labour standard. Is that something you would like to see in a Bill of Rights?

While the charter would primarily focus on individual rights, issues going to job security are very important. This includes the right to be consulted on technological change or restructuring, including via workers unions.


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*   View entire issue - print all of the articles!

*   Issue 88 contents

In this issue
Features
*  Interview: Labor Law
Shadow Attorney General Robert McClelland outlines his plans for workers entitlements, legal aid and a Bill of Rights
*
*  Unions: Poetic Justice
The ACTU kicked off its 2001 Living Wage campaign this week with a new shock tactic: poetry.
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*  Technology: Big Brother�s Legacy
Organisations with restrictive staff email polices risk locking themselves in the Industrial Age by treating their staff as units to be monitored.
*
*  Corporate: Scumbags Exposed
On the eve of the inaugural Corporate Scumbags Tour, we look at the worst of the worst from the Top End of Town.
*
*  International: Playing Away
Pat Ranald looks at a proposal to hold Australian companies to basic standards when they invest in developing countries.
*
*  Environment: Nuclear Titanics
The Maritime Union has joined Greenpeace in a campaign to stop our seas becoming a nuclear highway.
*
*  History: Out of the Bog
Neale Towart looks at the life of big Jim Larkin, one of the heroes of an Irish trade union movement that continues to thrive.
*
*  Politics: Westie�s Macquarie Street Alert
The Workers MLC, Ian West, provides the first in a series of regular rundowns on the upcoming Parliamentary session
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*  Review: The Next American Century?
How will the United States maintain its global power in an era when the very notion of the nation-state is under challenge?
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*  Satire: Dollar Crashes Through Psychological 0.00c Barrier
The bedevilled Australian dollar dropped below the crucial 0.00c barrier losing its battle to avoid the humiliation of being worth less than the commemorative Bradman coins distributed by the Sunday Telegraph last weekend.
*

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»  Shangri-La Faces D-Day
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»  Fiji PM Appointment Illegal
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»  Activists Notebook
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Columns
»  The Soapbox
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»  The Locker Room
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»  Trades Hall
*
»  Tool Shed
*

Letters to the editor
»  Blokey Culture
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»  Carr's Indulgence
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»  Postcard from Delhi
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