Recording: Workers' rights and human rights

THE HON. VERITY FIRTH:  We've hit about 100 people.  It's still going up but I am going to start talking and people with join us.  So thank you, everybody, thank you for joining us for today's even.  Before I begin, I of course want to acknowledge that wherever you are in Australia, we are all on the traditional lands of the First Nations peoples.  This was land that was never ceded.  Where I am at UTS in Sydney, I'm on the land of the Gadigal people of the Eora Nation and obviously I want to pay respect to Elders past, present and emerging and also honour the role the Gadigal played as traditional custodians of knowledge for the land upon which this university is built.

 

My name is Verity Firth.  I'm the Executive Director of Social Justice here at UTS and I also head up our Centre for Social Justice and Inclusion.  It is my real pleasure today to be hosting today's event, which we're putting on in partnership with the Human Rights Law Centre.  We'll be joined today by some very distinguished guests: Michele O'Neil, Alison Barnes  and Hugh de Kretser.  I'll introduce them properly in a minute or two. 

 

But I am going to do a few bits of housekeeping.  The first is that today's event is being live captioned, so if you want to view the captions, you need to click on the link that is in the chat and you can find the chat in the bottom of your screen in the Zoom control panel, and the captions will then open in a separate window.

 

Also, you do have an opportunity to ask questions of our panel.  So if you do have any questions at all during today's event, you type them into the Q&A box.  Don't type them into the chat.  We're not using the chat.  We're using the Q&A box.  The reason why we're using the Q&A box, which is also in the Zoom control panel at the bottom of your screens, is that it enables you to vote up other people's questions, so it means that you can go in and if you like a question, vote it up and that question will have more likelihood to be asked. I tend to ask the questions with the most votes, to be honest.  So it's worth getting your questions in there early. Do, however, please, try to keep your questions actually relevant to the topic that we're talking about today.

 

Last week, after almost 10 months of work, the Federal Government was forced to abandon the majority of its own industrial relations Omnibus bill in the face of challenges and lack of support in the Senate.  In the end, only limited changes to casual employment were passed, with the Government deciding to remove the criminalisation of wage theft from the Bill.  It comes off the back of other workplace and industrial relations issues that have taken centre stage in parliamentary debate, including freedom of association under the Ensuring Integrity Bill and freedom of expression, something that's been particularly talked about in relation to university staff.

 

In Australia, the right to work has theoretically been enshrined in the right to work safely, to be paid a secure wage and to have equal access to opportunity.  But when industrial relations legislation is developed and debated, where do human rights fit into the picture? Are we placing workers' rights and human rights at the heart of considerations? That's essentially the topic for today and I'm delighted to be joined by three leading minds on the forefront of these issues to imagine how a human rights focus could ensure that people really do have a safe and healthy workplace, somewhere where they are free to express their views and somewhere where they can join together with colleagues to advance their common interests.

 

Firstly, Michele O'Neil.  Michele O'Neil is the President of the ACTU.  I realised I've lost the little bios for you but I know who she is.  Luckily she's the President of the Australian Council of Trade Unions.  She began her life working as a waitress and went on to work in the community sector with homeless young people and then to work in the clothing industry.  She was elected as ACTU President in 2018, having represented workers in the textile, clothing and footwear industry as an organiser and then Branch and National Secretary.  And I'll leave it at that but she's a great champion of working people.

 

Dr Alison Barnes is the National President of the NTEU.  She was elected to the position in October 2018.  Before she took up her role as National President, Alison served as the Assistant Secretary of the NTEU New South Wales division and branch President at Macquarie University.

 

Last but not least, Hugh de Kretser.  Hugh de Kretser was a board member of the Human Rights Law Centre when it was established in 2006 and joined the team in 2013 as the Executive Director.  Under his leadership, the centre has more than tripled in staffing and resources and continues to extend its positive impact on human rights in Australia.  And I'll let Hugh tell you a bit more about his work later.

 

So, scrolling back now so that I can get to the questions, Michele, I'm going to start with you.  Last week saw workplace rights dominate parliamentary debate with the Omnibus bill.  How big or small a role did workplace rights have in the Bill that was originally drafted and its consideration by Parliament?

 

MICHELE O'NEIL:  Thank you, Verity, and hi, everyone, and I also want to acknowledge that I'm here on the land of the Wurundjeri people of the Kulin Nation.  I want to pay all my respects to their Elders past and present and it always was, and it always will be, Aboriginal land and great to join you and to be with Hugh and Alison today.  Thanks for the chance to talk about such an important issue.  It is timely in all sorts of ways.

 

Starting with your question there, Verity, what we have seen is firstly I think people trying to somehow suggest that there's some difference between workers' rights and human rights.  I suppose the first thing I want to say is that they're one and the same.  You can't effectively ensure that people have human rights if workers don't have their rights and respected and protected at work.  And what we have seen by this Government over various attempts over the life of this Government is that when they're designing industrial relations legislation and the so‑called IR Omnibus bill, which is the latest version of that, there is a notion that they approach it from ‑ there's somehow some equity issue about business rights and workers' rights needing to be both considered and the rhetoric is that it's important to get the balance right, that you've got to get the balance right for business as well as for workers, but the reality of what they do in terms of designing and attempting to enact legislation is very much have a focus on what does business, and in particular big business, need to ensure that they're in a more powerful position in relation to work and workers, and that has been the driving point really behind every bit of industrial legislation they've tried to do since they've been in government.  The most recent example of that is pretty stark, with the IR Omnibus Bill.  So this was a bit of legislation that purported to come out of these working parties that had happened last year in the midst of the pandemic, where the union movement was saying, "We want to work to number one be part of keeping people safe and alive".  But, number two, "Making sure that in our responses to that, we get the public health right but that also we ensure that people, as much as possible, can stay in jobs and stay safely in jobs, so both be able to work safely but also stay connected to work.

 

The discussions that the Government set up were on this premise that I started with, that somehow we're going to listen to business and workers.  The end result of those discussions was that the Government put in legislation into the Parliament in December which clearly was one sided in its approach.  It basically took the worst aspects of the more extreme Elms of the business lobby and what they'd been raising in those discussions and turned it into a bit of legislation and for good measure added some elements to it that hadn't even been floated by the worst elements of the business lobby.  So what you got in this legislation was five key areas of changes, one which is the one that survived ‑ and I will come back to ‑ being casual workers.  The other areas that were defeated in the Bill and didn't continue firstly went around issues to do with bargaining.  So, as we know, fundamental to freedom of association, as a right, is the basis that you can organise and you can bargain together, and being able to organise and bargain is critical to ensuring that that right has life breathed into it.

 

This Bill had ‑ for bargaining it dramatically reduced workers' right firstly to be reported so it doubled the period of time that workers even had to be notified that they had a right for represented in bargaining, so pretty clearly designed to limit workers' rights to be represented by their union in bargaining.  It removed requirements that workers had to understand everything they were voting on in bargaining, so instead of having the whole agreement and anything that the agreement referred to, it basically limited it to only the agreement itself and an example of that is that if you had a company that had a policy that said you can be sack for not wearing the uniform, right now under law you would have to have that policy when you were voting on the agreement so you could understand what your rights and conditions were, so it removed all those requirements to make sure people fully understood what the impact of a deal was.

 

It also had a big element of saying that you no longer had to apply the better off overall test, so this idea that workers in bargaining couldn't be dragged backwards in terms of their rights and conditions, that there was a role to play in terms of checking that workers' rights weren't going to be reduced by an agreement and it had a suspension of that for a couple of years.  Then it also removed unions' rights to be able to turn up at the Fair Work Commission and say, "Actually, this agreement doesn't meet the national employment standards" or "workers will be worse off" or challenge any elements of the agreement.

 

So that was what they did with all bargaining, but, in addition to that, they were introducing what was called a greenfields agreement, which are agreements that are construction agreements that already exist in law that can go to up to four years.  They wanted to double that to eight years.  So, basically, workers in remote construction projects that you can imagine in the Pilbara or parts of northern Australia, where currently those agreements get basically put in place before there's any workers, so they're not voted on, they're not at all democratic, they wanted them to go for eight years with none of those workers having any rights to renegotiate their wages and conditions and, importantly, because of things like high suicide rates in these types of projects, not even able to renegotiate issues that would really literally be lifesaving for a whole eight‑year period.  So removing those construction workers' rights for eight years.

 

Then the other thing it did was keep ‑ during the midst of the pandemic, when the Government introduced JobKeeper, they said that ‑ they changed the Fair Work Act in a way that we didn't think was necessary but they changed it to say that workers could be directed to work in different places and do different duties.  It was an "emergency measure".  And this Bill had that continuing without the JobKeeper payment.  So they would no longer have the job security of the JobKeeper payment, but the boss, the employer, would still be able to say "well, I can change where you work and I can change what you do" and removed any right to go and get that tested at the Fair Work Commission.

 

The other one was part‑time workers, changing the rights for part‑time workers, to reduce them.  So it was effectively casualising part‑time work, saying part‑time workers could be directed to do extra hours who out the right for penalty rates, and with no certainty.  So many women, for example, do part‑time work because they want to match it with caring responsibilities, but it would have removed all the certainty they had about when they were working and their patterns of work.

 

So they all got taken out of the Bill and it didn't get through, but you can see where I'm going with this.  You can see how they were about dramatically reducing the human rights and rights of workers in Australia.  The one bit that got through also does this, and this is a shocking thing because we have a huge problem with insecure work in Australia, and it's a growing problem and what the Bill did was enshrine a change to casual workers that means that it will actually legalise sham arrangements where workers are called casuals but, in fact, can be employed for a long periods of time of what, up until now, would have been seen as permanent work and, therefore, those workers would have had the right to go off to the courts and say, "Well, even though I was called a casual, the reality of my working life is that I've become a permanent worker" and the courts have consistently said, "Well, if that's the reality, you should be entitled, therefore, to things like accrued annual leave and sick leave and long service leave".  It removes those rights by basically enshrining a new definition of casual and puts primacy on the offer of employment.  So if the employer says, "Here, Verity, here's a job for you, you're a casual", but the reality of your work is that you turn out not to be, in any challenge to that, now what will have primacy is the fact that you were offered the job as a casual and took it as a casual.  So it really dramatically reduces and enshrines casualisation in a way that will only diminish workers' rights.

 

So I will end by saying that this is an example and not the only one and, of course, if you think about the current debate about what's been happening for women and women workers and what's been exposed as something we've long known as an issue of sexual harassment and assault and violence throughout workplaces ‑ every workplace in the country, you can see again in the Government's response that they are opposed and incredibly reluctant to make changes that give workers rights.  They're happy to talk about culture, happy to talk about respect, happy to talk about attitudes, but you don't hear them saying what needs to be done in terms of legal rights and capacity to enforce those rights, and that's what's critical in this debate.  So there's those 55 recommendations of the Sex Discrimination Commissioner and included in those that the Government hasn't implemented or committed to implementing any is improve rights for women to be able to take sexual harassment matters to the Fair Work Commission and have quick, easy access to orders to keep themselves safe and remove risk; improved health and safety regulations and rights that would give employers obligations to look at the underlying causes of harassment; and, of course, rights to the Sex Discrimination Commissioner on her own initiative to go in and investigate high‑risk sectors or industries, and, of course, they're not talking at all about the fact that they haven't ‑ and I'll send on this ‑ that they haven't agreed to ratify the ILO convention into violence and harassment at work, a really important new convention that workers and unions here in Australia and around the world fought for and won two years ago but our government's yet to ratify.  So I'll leave it with that, Verity.  Thank you.

 

THE HON. VERITY FIRTH:  Thanks for that, Michele.  That was a really great opening.  I hadn't realised that they hadn't ratified that ILO yet.  So that's rather depressing.  OK, so we'll come back to that in a minute.  But I'm going to go to Alison now because in terms of rights at work or human rights at work, universities have for thousands of years been considered a bastion of debate, research and discourse.  What has changed to mean that there's now a immediate for academic freedom to be better supported and protected in our laws?

 

DR ALISON BARNES:  Thanks, Verity.  Thanks, everyone, for having me it I really appreciate the opportunity to talk to you all today and I would also like to acknowledge that we're meeting on traditional Aboriginal lands across the country and pay my respects to Elders past, present and emerging.  Sovereignty was never ceded.  It's a really good question, Verity, and I suppose so much has changed across our universities.  There's the corporatisation of our universities, our universities being run less like public institutions for the public good and more like big businesses, and this has real ramifications for academic freedom.

 

The other major crisis that we face ‑ and Michele talked about I suppose the huge problem with insecure work across our country ‑ we have a huge problem with insecure work across our universities.  Only 35% of people employed at Australian public universities have tenure or ongoing employment, so casual and precarious or fixed‑term contracts, they all undermine academic freedom.  If you don't have security of employment, you can't exercise academic freedom.  We find with insecure workers that they self‑censor because they're worried about losing their work, and so it's really important that our government funds universities adequately.  Before the COVID crisis, $10 billion had been ripped from Australian universities in 10 years and COVID crisis has only exacerbated that with another $3 billion to $5 billion missing from university revenue.  So this funding crisis really, I suppose, incentivises university management to increasingly casualise their work force and I think further creates a whole range of problems across our sector which impact on academic freedom.

 

So there's many, I suppose, forces at play when you look at academic freedom but the corporatisation of our universities, the increasing reliance on people who have no security of employment are really central to dealing with the crisis or dealing with ensuring that academic freedom across our institutions is protected.  We need to remember that academic freedom is really the cornerstone of Australian universities. 

 

THE HON. VERITY FIRTH:  And about so much that our democracy really functions on. 

 

DR ALISON BARNES:  Absolutely. 

 

THE HON. VERITY FIRTH:  Yes.  So Hugh, I was thinking about how Michele opened by making it very clear that human rights are workers' rights and that workers' rights are human rights, and I think that was good that she did that because sometimes bizarrely they're somehow seen as not one and the same. That's a form of my question to you, which is basically we see ourselves as a vibrant liberal democracy.  How would better entrenching human rights lead to better laws and policies for workplaces? Maybe you could provide us with some examples. 

 

HUGH DE KRETSER:  Sure, thanks.  And I'm coming from the land of the Wurundjeri people of the Kulin Nation and I acknowledge that this land has never been ceded and particularly acknowledge the importance of the issues we are talking about today to Aboriginal and Torres Strait Islander people, given the awful history of dispossession, of forced labour and of stolen wages.

 

So workers' rights are human rights.  Human rights are the essential ingredients that we all need to live a decent, dignified life, and the right to work, to just and favourable conditions of work, the right to get together and form a trade union, to undertake trade union activity, the right to strike, the right to collectively before gain, these are essential human rights.  They are recognised in the international human rights treaties that Australia has signed up to but those rights have not been properly implemented as Australia has promised to do in our domestic law, and so what we have is a patchwork of protection with holes in it.  That needs to change.

 

What we have at the state and territory level increasingly is state‑based human rights charters, so in Victoria, where I am, we have a charter of rights but that charter of rights has gaps in it.  So while it protects some important rights to workers, like the right to equality, freedom from discrimination on the grounds of various attributes, it protects the right to freedom of association, to freedom of peaceful assembly, to freedom of expression, particularly important in the academic freedom context, so the right to protest effectively, which is critically important to workers' rights.  It doesn't protect some of those rights which are known as economic, social and cultural rights, which Australia has agreed to protect.

 

Queensland has a Human Rights Act recently, which is great to see progress there.  ACT led Australia in adopting its Human Rights Act in 2004 and, interestingly, last year it reformed that Act in a very positive way to specifically protect the right to work, the right to just and favourable conditions of work and the right to join a trade union and to undertake trade union activity.  So what we want to see and what we have to campaign around is to ensure we have national protection of human rights, including workers' rights, and so Australia is ‑ you mentioned our reputation as a liberal democracy.  We're the only liberal democracy in the world not to have a Charter of Rights at the national level and we're trying to change that, and that Charter of Rights should have, as part of it, the whole suite of human rights, the things that we all need to lead a decent, dignified life, the things that protect things like dignity, respect, equality, we need that full suite of rights protected, including workers' rights.

 

Briefly, the model for the charter we are asking for is one that retains parliamentary supremacy, so this is the model that's in the UK and New Zealand, European nations, where the Parliament ‑ Parliament is the ultimate arbiter.  We could go for constitutional protection of rights, which would be the best protection, but our history of referenda in Australia shows how hard it is to achieve that.  So, as a starting point, we want to have a national legislative Charter of Rights that, importantly, requires all Federal agencies, all public servants, to think about human rights before they act, whether it's developing laws or policies or delivering services, and to properly consider those rights and to act compatibly with those human rights as a legal obligation.  It would give people the power to take action if their rights are breached and it would say to courts when you're interpreting legislation, "You must interpret it in a way that gives the greatest effect to human rights within a reasonable interpretation". 

 

So what we have seen in Victoria and Queensland and in the ACT and overseas is that Charters of Rights are effective; they're not a silver bullet but they are an important step forward in terms of injecting human rights into the DNA of a nation.  To make sure they're taken seriously, to give people the power, workers' rights need to be part of that.  And some of the things that Alison and Michele have been talking about are really clear examples of why we need to focus on those areas and, in particular, one of my colleagues who was part of parliamentary scrutiny of new legislation in Australia commented to me that they saw time and time again legislation being introduced at the National Parliament that undermined in particular freedom of association, the freedom of workers to gather together and form a trade union and undertake trade union activity.  We saw that with the so‑called Ensuring Integrity Bill and we quite deliberately did a lot of work on that Bill to join with the ACTU and others to oppose that Bill because it was a quite deliberate attack on freedom of association for workers and that's important for workers.  It's also important for human rights in this country and what is an attack on unions one day, right now, is an attack on charities, and we can talk about that in a separate forum, but there are very similar things being done in that space and that were attempted in that Ensuring Integrity Bill. 

 

THE HON. VERITY FIRTH:  That's really interesting.  I am about to go to Michele to talk more about the Ensuring Integrity Bill but I think that point you make about Australia being the only liberal democracy that doesn't have a Human Rights Act or charter or equivalent is pretty damning, and that's especially so considering the cases you also said that we have signed up to all these UN conventions, ratified them, done the woo‑hoo and they're not actually enacted them into domestic law in significant ways.  I think it's interesting that Australia is such an outlier in that and we might come back to explore a bit of the reasons why Australia's an outlier in this space.

 

Just to you, Michele, because Hugh talked about the Ensuring Integrity Bill, so twice in the last four years this Bill has been put to Parliament and narrowly defeated.  If it had passed, this time around, how would it have affected the freedom of association for working people in Australia?

 

MICHELE O'NEIL:  Thanks, Verity.  I suppose it's important to start this with putting it in some context.  The Australian trade union movement is one of the most highly regulated union movements in the world in terms of us having a specific Act, the Registered Organisations Act, that really is designed to control unions and how unions operate.  There's many examples around the world where there's no role for the state in regulating the behaviour or the organisational basis or the democracy or the reporting of financial arrangements ‑ it goes on and on ‑ to the extent that Australia has.  So we already have a very strong regulatory requirement on unions that does not reflect most of the world.  An example of that would be if you were in New Zealand and you wanted to amalgamate one part of the union with ‑ sorry, one union with another union and the two unions thought it makes sense for us to join together, then the process for that to happen would be for the two unions to have their members vote on that, and there's no regulatory overseeing of it, whereas in Australia already, without the Ensuring Integrity Bill, there's a very long and complex process that has a lot of state intervention in it.

 

So that's the starting point.  Then already with that in place, the Government came up with this Orwellian named Ensuring Integrity Bill and tried to introduce legislation over a long period of time that we fought off that would have ‑ let me illustrate it by an example from my own life. So I used to be an organiser in the textile, clothing and footwear industry and I frequently would go into sweat shops where small numbers of mainly migrant women were working, often horrific conditions, and if I gave what technically is the legal requirement to enter that workplace, which is 24 hours notice to say "I'm coming in to have a look and talk to people and see whether their rights are protected in this workplace", what would always happen would be that the sweat shop would disappear because if you say "I'm coming tomorrow", it's not hard to move six sewing machines, and if the machines weren't gone, the workers all were.  And the worst hazards, et cetera, would have been cleaned up.

 

It was frequently the case that I made the call, as did other organisers, that the right thing to do to protect workers' rights was to not give 24 hours notice.  That is not correct.  They can consent to let you in, but it's not correct because we're legally in Australia meant to give that 24 hours notice.  If I had done that and I had been prosecuted for doing that, so I had been taken to court and said, "Well, you should have given 24 hours notice; that's a breach of your right of entry permit.  Because union officials have to have permits, it's a breach of that permit that you went into that sweat shop", the impact of the Ensuring Integrity Bill, if it had become law, would have been that I would have been struck off from ever being able to be an elected union leader in my union again.  So I would have had no rights to ever be elected by members to represent them.  And if I had stopped being an elected leader but then the union had said, "Oh, look, we still want you to advise us; come and work for us", that would have been a criminal act I could have gone to gaol for, for continuing to advise the union.

 

The other implication of me having gone into the sweat shop would be that that was not just a breach in terms to of what I had done as an individual but the union would have been seen to have breached the act as well, and, therefore, the union would then have been at risk of having been put into administration where there would be an external administrator appointed over the whole business of the union, all its assets, decisions, et cetera, taken out of the democratic control of members, and also not just an option for administration but, in fact, an option to deregister the whole union based on me going in the sweat shop.  So the whole union could have been deregistered as an organisation to represent workers.  Then, further to that, the fact that that one incident had happened could have also led to the union having no rights to be able to merge or amalgamate with another union. 

 

So all of these consequences, not just for my example but similarly serious consequences for the unions if they had breached what are really paperwork provisions of the Act.  So we've got to regularly put in financial reports.  I don't mind that degree of public scrutiny of union members' money.  I actually think that's a good thing.  But the comparison already that with a union providing public reports on its finances compared to a corporation is that if a corporation doesn't do it, literally the fines are in the hundreds of dollars for delaying or not putting in your regular reports to ASIC about your financial situation.  The impact for a union would have been ‑ already our fines are much higher, but if this Bill had gone through, again the union could have been deregistered or put into administration just for getting its paperwork wrong.  No such equivalent in Corporations Law.  A shocking overplay of state power into the genuine operations of unions. And, of course, the ultimate problem for that is it takes away workers' rights.  It's about workers' rights to organise freedom of association, come together and run their own organisations.  But we beat it. And with some great help.  Thank you, Hugh, and all the others who were part of that really important campaign. 

 

THE HON. VERITY FIRTH:  Yes.  That's a really great description of just the impact it would have had.  And it throws into a lie this idea of balance too, that there's no balance in terms of the punishments or something that both sides face.

 

Alison, besides academic freedom, what sorts of other challenges has the NTEU experienced when it comes to workers' rights in the tertiary education sector?

 

DR ALISON BARNES:  Yes, thank you.  I think Michele and Hugh have touched on the challenges we face in terms of being a union and the problems unions across this country face generally.  We face a number of I think unique challenges.  I think Michele was talking about public scrutiny.  We need that public scrutiny applied to universities.  We particularly need it around that area of casualisation.  It's only in Victoria where universities are, for example, compelled to release data on the number of casuals employed across our universities.  I believe that we need to ensure that across all our states and territories, we have access to that kind of vital information.  It's really key to, I suppose, us as a union and I suppose for us in higher education to have accurate data around the numbers of casuals employed.  Like, I could tell you that 50% of undergraduate teaching is performed by people who are casual but I actually think the figure is much, much, much higher, and we really need accurate data and accurate protections for casuals. 

 

So we need funding to address the crisis of casualisation across our sector.  We need proper protections for our casuals so that they get sick leave.  And we need, I suppose, accurate data around casuals in itself.  So there are a whole range of issues we face.  As Michele alluded to, we also need improvements to right of entry, so it's easier for us to get on to our campuses and see what's happening.  There's a number of things that I think particularly for us we need to look very hard at the Jobs Graduate Ready package, which was passed last year.  This is I think in my whole time the worst piece of policy for higher education across this policy.  It squarely shifts the COVID crisis on to staff and students.  So by starving the sector of funds, the Federal Government is essentially ensuring that staff across our sector and students across our sector are carrying the can.  We see that in increasing workloads.  We see it in concerns around the pastoral care that students are receiving, particularly as professional and general staff and women across our sector lose jobs.  We haven't received a lifeline or a rescue package for our sector as we emerge from the COVID crisis, and we are talking about a context where I estimate that around 20,000 people who should be in our classrooms, who should be developing cures for COVID‑19, who should be supporting our parents, have lost work.  So we are, I suppose, in the biggest crisis that Australian universities have ever faced and we have a government that has denied Australian universities access to JobKeeper on three separate occasions and we have had a government that not only has not come through with a rescue package or a lifeline that our public universities and even our private universities so desperately need to be able to weather this crisis has essentially gone missing in action and their policy response is one that effectively shifts the cost of that crisis on to staff and students.

 

So we need proper protections for casuals.  We need increased funding so we can end the casualisation crisis.  We need accurate data around the number of casuals, and that's just the tip of the iceberg.  There are many problems that I think are confronting our universities as they face these huge challenges that our Federal Government is simply missing in action on. 

 

THE HON. VERITY FIRTH:  Yes. As someone who works at a university, there is much I could concur with that.  So, Hugh, last week Parliament passed the Higher Education Freedom of Speech Bill to better support academic freedom in universities. Do you think this case‑by‑case approach to improving human rights is the best approach and, if not, why not?

 

HUGH DE KRETSER:  So the answer is no.  We need a comprehensive approach and that's why we're pushing for a Charter of Rights at the national level.  There's the higher education reforms trying to protect academic freedom, and freedom of expression is an integral human right to that academic freedom.  And some of the reforms there are important but, again, it's piecemeal and there's a debate that's been happening in the Federal Parliament around freedom of religion and you have an interesting dynamic at play in Federal politics where you have some MPs who have been vociferously opposed to human rights protections invoking these international human rights treaties and saying, "We need to protect freedom of religion; it's there in article XYZ of the International Covenant of Civil and Political Rights". 

 

So, instead of doing these things on a piecemeal basis, what we need is to actually step up and live up to the promises that Australia has made under international law to protect all human rights for all people under our jurisdiction and, if we do that, we know from the experience overseas that we'll have better laws, better policies, a stronger, healthier community, a stronger, healthier, more compassionate society.  And so this is what we need to do, and a lot of the questions I can see in the chat are around why haven't we don't it yet and we can go there in a sec, but no more of this problem by problem fixes.  Rather, we need an overarching umbrella protection of human rights in this country through a Charter of Rights.

 

Just to respond to something Michele said, I was actually surprised at the amount of pick‑up ‑ when we went out on the Ensuring Integrity Bill with the media release and with our submission, there was a higher than usual interest from the media in the things we were saying about why that Bill was wrong, should have been rejected and undermined human rights, being specifically freedom of association, and it was a nice reminder for me about the importance of human rights advocates speaking out about workers' rights because too often, when the unions are speaking out about it, of course you would say that and it's important for human rights advocates to look at these issues and say: "There it is.  What they are saying is absolutely correct".  Michele said it far more eloquently, with much more practical grounding than I could ever with that sweat shop example, but it is so important for us to stand up for these principles, whether it's charities, whether it's community groups, whether it's unions, because they are integral to the health of our democracy and to the health of our nation. 

 

THE HON. VERITY FIRTH:  So Hugh is right, a number of the questions are actually about why hasn't this happened yet? So I am going to merge Katie Price's, Chris Stamford and Steven Masters' questions into one, and essentially they're all saying: why hasn't this happened yet? But Katie says, look, the vast majority of Australians assume we already have a Bill of Rights.  How do we raise awareness sufficiently to demonstrate the need for a system of legally enforceable human rights within mainstream Australia? So in some ways it's almost like a campaigning question.  Like, how do we raise awareness and build political momentum for a Bill of Rights in Australia and who wants to have first stab at that one? Hugh, you go first. 

 

HUGH DE KRETSER:  I am happy to because it's a great question.  Thank you, Katie.  You set up a national campaign for a Charter of Rights and we have done that, working with now I think close to 60 organisations around the country.  Its charterofrights.org.au.  There's a petition.  There's activities like this event that we're doing to raise awareness.  Obviously events like this are self‑selecting, the people who are interested in the topic will come along and often will be interested and educated about where the gaps are.  What we need to do is go beyond that into our schools, into our public debates, into our Parliaments to talk about the absence of legal protections of human rights in this country and how we need to fix that, and that's exactly what we are doing through the Charter of Rights campaign.  So I encourage people who are interested to get behind that campaign and get involved in some of the activities that we are doing. 

 

MICHELE O'NEIL:  Can I just add, I think with all of this, it's about how we make it something graspable and understandable to people because I think often discussion about human rights ‑ it's not like anyone is ever going to say, "No, we shouldn't have them", but tangible examples of what it will mean to people's daily existence is what I think gets people mobilised around issues. So translating the idea of a charter into something that can be easily and powerfully explained about what a difference it would make in your life and what does it mean to have a right I think is critical to winning any change. 

 

THE HON. VERITY FIRTH:  Alison, do you have anything to add?

 

DR ALISON BARNES:  No I think I will leave it and maybe return later to the issue of academic freedom in Australian universities and the challenges we face. 

 

THE HON. VERITY FIRTH:  Cool.  Chris Stamford also pointed out how come the Australian Labor Party hasn't yet signed up for it, considering that in the platform in particular, a lot of the policies in the platform are essentially human rights focused policies.  I know that none of our panelists actually speak on behalf of the Australian Labor Party, but is there anybody who wants to have a go at answering why that hasn't happened yet? Hugh?

 

HUGH DE KRETSER:  Again, happy to.  It's an issue we have given a lot of thought to over the years.  The national platform currently says that Federal Labor will have a review if it's elected into whether or not the human rights can be better protected through a human rights charter or similar instrument.  So there's a positive commitment to that review.  There's also positive commitments in the platform to implementing those rights that Australia has signed up to at the international level in domestic law, so there are positive statements there.  There is no positive statement that says, if elected, we will introduce a Charter of Rights in Australia.  Obviously, as the campaign for a Charter of Rights, we want to see those positive commitments in there by political parties, not just by Federal Labor, of course.  We would love to see ‑ you read ‑ I mean, the thing that is frustrating is if you read the Liberal Party's constitution, it is all about human rights, civil and political rights only, but it's freedom of speech, it's freedom of association, it's freedom of assembly.  When the Liberal Party introduces the so‑called citizenship values booklet and the like, it says "Australian values, this is what defines us as a nation, the way we stand up for human rights like freedom of speech, freedom of association, freedom of religion", yet there is not that follow‑through on the commitment to actually implement them with legally enforceable guarantees for people in Australia to protect their rights if government oversteps the line.  Better still, what charters do is actually prevent governments from stepping over the line in the first place. 

 

THE HON. VERITY FIRTH:  So, Michele, the next most popular question is actually for you, and it's from Joe Murphy, and he's asking: what do you consider is the reason collective bargaining has declined? What are the changes you would make to facilitate an environment that supports and encourages collective bargaining?

 

MICHELE O'NEIL:  Well, I think it's a combination of things.  I think it's the fact that we have seen a change in the nature of work and workplaces, so the fact that more and more workers are working in smaller workplaces.  What I have already mentioned, more workers are casual than insecure workers, and our bargaining rights are very limited and constrained.  We have also moved to changes in the Fair Work Act that, rather than the notion of having union agreements where unions can initiate bargaining and take industrial action as necessary to achieve it, we have a whole series of constraints on our capacity to even begin bargaining and we have got major legislative impediments to even start the process.  So any group of workers, whatever the size of the workplace, the notion that you just say: "We're going to start bargaining" and the employer agrees ‑ in fact, there's a whole range of legislative traps used by employers to frustrate the process of bargaining even beginning and then, of course, let alone coming to a conclusion that's a fair conclusion and one that workers support. 

 

Of course, if things go off the rails and if there's a refusal to bargain or there's bargaining that doesn't have outcomes that are supported by workers, our limitations on our rights to take industrial action to resolve that or win that are completely curtailed.  So the hoops that Australian workers have to go through to be able to legally take what's called protected action to win an agreement are again some of the most complex and really designed to frustrate and suppress, strike, or even, in fact, any other type of industrial action, not just strike action.  The NTEU have got some great examples of just frustrating people even meeting or sending emails to each other to get organised.  The limitations on our organising and freedom of association rights are pretty severe.  So that's limited bargaining.

 

The other thing that has changed in terms of bargaining is that the capacity for workers to be always connected to each other and recognised as workers, so let's think of the gig economy.  So not just growth in casual work but contract work, again NTEU knows a lot about this, but also the development of gig economy workers where people are not treated as workers.  So they're basically in sham arrangements where they're told you're not an employee and then consequently they've got to set up these ABNs and bid for their work every minute of the day to get work, even though they have no real control.  You have seen the fight back from the likes of Uber and others who are globally trying to fight off unions' efforts to change the rights of working people in the gig economy, and, of course, they've technically got no bargaining rights.  So if you're a worker in that circumstance, you're not recognised as having rights to bargain in the law, which is one of the reasons why those multinationals are creating those type of work arrangements so that workers have less rights to organise and bargain.  So all of those things have suppressed bargaining and what's needed to change that is we need to change the rights in the Fair Work Act to be able to recognise workers whether they're technically called "employees" or not as workers.  So workers having the right for freedom of association, to bargain, to come together collectively, and be treated properly, but also our rights to be able to take industrial action need to be consistent with international labour standards, which they're not.

 

One other critical thing, we don't have the right to bargain across sectors or multiemployers or industries, so that's the other huge thing that suppresses bargaining in Australia, and, again, is out of whack with most other countries where we're constrained by this enterprise by enterprise approach, whereas in many countries you can come together and bargain across whole sectors or industries. 

 

THE HON. VERITY FIRTH:  And, Alison, I noticed you unmuted yourself. 

 

DR ALISON BARNES:  I did.  I was desperate to follow on something Michele said about the link between the points Michele is raising about bargaining and academic freedom.  As I said earlier, academic freedom is the cornerstone of Australian universities.  You need scientists to be able to exercise it so they can develop cure for diseases.  You need the humanities to have academic freedom so they can put that critical lens on our society.  So it's absolutely integral to what a university is.

 

The best protections we have for academic freedom are those contained in our enterprise bargaining agreements.  So any constraint placed on bargaining effectively undermines academic freedom.  So academic freedom is currently being undermined by the breadth and depth of insecure employment across our sector and by constraints on bargaining.  We need to be able to bargain to ensure that academic ‑ rights to academic freedom are protected across our campuses because we see increasingly university management who should be, because it's so fundamental to our institutions, leading the charge to protect academic freedom often seeking to compromise it by acting against staff who exercise it and, remember, academic freedom is only tested when it's controversial; it's only tested when it offends a shock jock or it offends a politician.  So it's only tested when it's controversial.  And we're seeing universities increasingly worried about their brands and their reputation, rather than protecting what is the cornerstone of our Australian universities.  And so I suppose the connection there, the best protection for academic freedom across this country are strong clauses in enterprise bargaining agreements so anything that makes it difficult to bargain has the potential to undermine academic freedom, which, as we know, is under attack or is in crisis because of insecure employment, because of university's management worried about brand and a range of other factors. 

 

THE HON. VERITY FIRTH:  Hugh, do you have anything to add on collective bargaining?

 

HUGH DE KRETSER:  Only that Michele rightly said we need practical examples of how a human rights charter might help in this example.  If you look to Europe and Canada, there have been examples where charters of rights ‑ different contexts ‑ Canadian, it's in the constitution, but where governments tried to pass legislation which restricted what could go into a agreement, that limited the ability of some workers to have particular agreements in certain industries that in some extreme cases annulled retrospectively agreements that had been made.  Human rights instruments have been used to stop that kind of undermining of collective bargaining rights.  Under Australia's international human rights obligations, Australia has obligations to actively fulfil these rights, to progressively realise these rights.  As Michele and Alison have said, instead too often we're actually undermining them and going backwards on these.  The ILO is criticising us.  The committee on economic social and cultural rights at the UN has criticised the way Australian Parliaments have undermined the right to strike.  So human rights laws have an important role to play but, unfortunately, they're not given the teeth they need here in Australia to be able to properly protect those rights. 

 

THE HON. VERITY FIRTH:  I'm mindful of the time.  We only have five minutes left.  I just wanted to conclude ‑ so sorry, people, who didn't get their question asked.  I just wanted to conclude with the question I have come up with myself, listening to you all, which is a little bit about Australian exceptionalism.  It sort of surprising me ‑ we see ourselves as such a nation of the fair go and egalitarian spirit and a nation of a strong trade union movement and all of these things and yet everything that you have all said today really has pointed out that Australia is an outlier in a number of respects.  It's an outlier in terms of the amount of regulation we put on our trade union movement, as Michele was talking about, and an outlier in terms of its lack of human rights protections in its laws, in the form of a charter or so forth.  So can we maybe conclude with just some comments around why? What do you think is the reason that Australia is an outlier in this respect and then, on a more positive angle, what can we do to change it? I might start with you,al sop?

 

DR ALISON BARNES:  Not only are we an outlier in I suppose the areas you raise, Verity, but we're also an outlier when you look at funding for public education.  We are really I suppose ‑ I know I keep talking about funding and casualisation, but it really is this fundamental, I suppose, challenge that Australian universities face.  And it undermines that notion that with are the country of a fair go.  Universities provide a path out of poverty.  They provide all sorts of benefits to society in a real Broadway.  So without, I suppose, dealing with that inherent crisis that we're in, I think we damage not only the students who attend university and not only staff who are being crippled under workloads but we damage our nation's capacity to respond to social or economic or any of the environmental, any of the challenges that we might face over the coming decades.

 

I suppose what I would really like to see, what is my hope for the future, how would I like to change this, well, firstly if you're not a member of the NTEU, join.  We're much stronger when we stand together, particularly when it comes to collective before gaining, but I really would like I suppose the community to stand together to support public education in this country because it is of such importance to us as a society.  Public education, I suppose, from cradle to graduation.  We need really good, fair funding across all areas of public education in this country.

 

THE HON. VERITY FIRTH:  I love that! Michele?

 

MICHELE O'NEIL:  I feel like it's a circle, isn't it, because one of the reasons what we have been exposing and talking about today exists is because our rights are so constrained and limited and it doesn't match the myth.  It doesn't match the myth that we're egalitarian or we're the country of the fair go.  The reality of that is the fact that we're becoming more unequal and rising inequality is dramatic in Australia and you just have to look at what happened last year where over the course of the pandemic, we saw the highest profits on record in Australia and then we saw labour as a share of GDP to be the lowest in 50, 60 years.  So this sort of difference of outcome is not surprising, given the constraints on our rights and legislative ties that we are caught in.  And to change that ‑ I'm a unionist.  I'm going to say unionise and organise.  Like, the answer to that is to have people come together and campaign and fight to change that but, again, I think we've got to be ‑ and maybe this is probably the wrong point in the conversation to introduce this, but it's also about, I think, well, let's be clear about prioritising what it is we're going to win and campaigning in a way where we get the broadest possible support and mobilising around it.  So the more we can have these type of conversations where we say, well, OK, what's the things that are going to make the biggest difference and how do we get the most people part of that fight, I think rather than fighting on every front because there's a lot of wins we need to have. 

 

THE HON. VERITY FIRTH:  And, Hugh, you can have the last word. 

 

HUGH DE KRETSER:  Thanks.  I'll make it brief because I know the time.  There's PhDs that could be written about why Australia's different from the rest of the world.  We obviously had enormous success as a stable, prosperous democracy.  It is not success that has been shared equally.   Michele is absolutely right in terms of rising inequality, contrasted to this so‑called egalitarian myth.  We have so far to go and we have so much potential to absolutely lead the world on human rights but we're squandering that potential at the moment.

 

I think it's changing, by the way.  I think that exceptionalism is changing.  What we saw in the media ‑ so we have had aspects of the media being opposed previously ‑ like NewsCorp to a Charter of Rights, suddenly having the homes of their journalists raided by the Federal Police.  There's a real wake‑up call that you cannot rely on the conventions, the niceties, the common law, parliamentary democracy as a means of protecting human rights in this country, and this is NewsCorp.  If you're a vulnerable minority in this country, if you're a migrant woman working in a sweat shop, you absolutely need stronger human rights protections.  Of course I'm going to say one thing we can do is establish a Charter of Rights.  There is a big ‑ and we should.  The national human rights consultation in 2009, their number one recommendation was human rights education, and so we need people to be speaking out about this, to be sharing their experiences, to be demanding change from the people that represent us in Parliaments, and that will be the key to progress and a fairer, more compassionate nation. 

 

THE HON. VERITY FIRTH:  Well, that's fantastic and a lovely way to end.  Thank you again to all our panellists.  I am sure the audience would agree with me to say you really were fantastic today.  It was a really robust, interesting discussion.  Thank you for taking the time and thank you to everyone else for logging on at Zoom.  You are now liberated.  See you.  Bye.

 

(End of session)