Brendan O’Connor has retained his position as Federal Shadow Minister for Employment and Workplace Relations in Labor’s Shadow Ministry announced on the weekend. In a frank and revealing interview in the latest edition of Workplace Review (Winter 2016, Vol 7 No 2), Mr O’Connor provides an insight into the personal influences and motivations that have led him to this point, and elaborates on Labor’s policies on a range of industrial relations issues.
His family’s aspirations and love of learning, and the social justice values and educational opportunities provided by past Labor Governments, were the factors that drove Brendan O’Connor, Federal Shadow Minister for Employment and Workplace Relations, to pursue a career in the labour movement.
Mr O’Connor arrived on Australian shores at the age of six with his family. Like many migrants, his parents wanted a better life for their children and came here looking for the opportunities so many have found.
He believes it is not just good luck that has helped him in life, but his family’s love of learning and the education policies of Labor State and Federal governments in the 1960s and 1970s. These policies also introduced the values of fairness and equality of opportunity to the community.
“These policies placed great faith in education being central to national growth and individual development. They also introduced to us the principles of equal opportunity. They enshrined the notion of ability and effort over privilege”, said Mr O’Connor. He has Arts and Law degrees from Monash University and a Diploma in Industrial Relations from Harvard University.
It was these experiences and values that drove O’Connor to work in a union. He represented the interests of Victorian workers before becoming Assistant National Secretary of the Australian Services Union.
His passion for workers’ rights motivated him to run for office. He was first elected to Federal Parliament in 2001.
As a Minister in the previous Federal Labor Government, Mr O’Connor was able to apply his experience and values in various portfolios.
As Minister for Employment Participation he overhauled the Job Network system, streamlining seven separate employment services into a one-stop shop.
As Minister for Home Affairs he enacted laws to protect children from being procured online, achieved consensus for an R18+ classification for video games after 10 years of debate, and introduced reforms to Australia’s anti-dumping regime.
As Minister for Small Business, Housing and Homelessness, he introduced the first Small Business Commissioner, and with the Council of Australian Governments (COAG), proposed reforms to increase housing affordability.
In 2013, Mr O’Connor was elevated to Cabinet level as Minister for Immigration and Citizenship, and later that year became Minister for Employment, Skills and Training.
Trade Union Royal Commission
Previously critical of the Trade Union Royal Commission (TURC) as a “politically motivated witchhunt”, Brendan O’Connor elaborated on his concerns about the TURC.
“The Liberals have a long-held position of contempt for trade unions,” he said, “and the Trade Union Royal Commission was a search for a justification of this position.”
Mr O’Connor said the TURC was an $80 million waste of taxpayers’ money. “It was aimed at damaging the Liberals’ political opponents and paving the way for wholesale attacks on penalty rates and other working conditions.”
“We should also remember Commissioner Dyson Heydon’s role in acting to speak at a Liberal Party fundraiser,” said O’Connor.
He described the “core” of the Liberals and their political ideology. “It is a desire to destroy the ability of unions to effectively represent workers, making it easier to rip away pay and conditions like penalty rates.”
“Labor has always said, we have zero tolerance for criminality or corruption – whether in unions, corporations or otherwise and that’s why we announced a comprehensive package of reforms to improve union governance.”
“Let’s not forget the Abbott-Turnbull Government has yet to legislatively respond to the TURC. They’ve not sought to legislate one single measure that was recommended,” added Mr O’Connor.
“Labor will always fight for workers and the conditions they rely on; Mr Turnbull and his Liberals will fight for big business and cuts to penalty rates.”
“We want to stamp out criminality in unions, corporations or anywhere”
Mr O’Connor discussed Labor’s proposals for improved governance arrangements for unions, which include increased penalties for serious breaches of the Fair Work Act 2009 (Cth). He said these would serve a different purpose to the increased penalties proposed by the Government.
“We want to stamp out any criminality in unions, corporations or anywhere else and we are always up for improvements. Labor has proposed a package of reforms which will help ensure that any criminal conduct is detected at the earliest opportunity and dealt with by the full force of the law,” he said.
“This includes doubling penalties for serious contraventions, significantly stronger protections for whistleblowers and improving donation disclosures.”
These measures will “build on the strong laws Labor put in place when in Government, including tripling penalties for breaches of the Fair Work Act.”
“The Government’s proposed Registered Organisations Bill would place higher penalties and a more onerous regime on officers of employer bodies and unions than those imposed on company directors, without any evidence they are necessary in addition to the 2012 reforms.”
Mr O’Connor said under the Government’s proposed penalties regime, volunteers working for nothing would be subject to the same penalties as directors of ASX 100 companies earning more than $200 000 a year.
He said that after calling a special sitting of Parliament to debate the Registered Organisations Bill the Government did not even seek to have the debate.
“They’re not serious about cleaning up unions, they’re just serious about trying to destroy unions so they can attack workers’ rights, their pay and conditions.”
FWBI v ABCC
Mr O’Connor was asked how a re-established Australian Building and Construction Commission (ABCC), as proposed by the Federal Government, would differ in content from the Fair Work Building Industry Inspectorate (FWBI) set up by the previous Federal Labor Government.
“The ABCC will reduce productivity, increase injuries and strip construction workers of common law rights,” he said. He listed his criticisms and concerns about the ABCC.
“The ABCC did not improve productivity: According to the Australian Bureau of Statistics, construction industry productivity increased more in the seven years before the introduction of the ABCC than it in the seven years the ABCC existed. Productivity has been higher every year since the abolition of the ABCC in 2012.”
“The ABCC did not reduce industrial disputation: Apart from the September 2012 quarter, working days lost per 1000 workers to industrial action under the FWBI are lower (nine days) than they were from the start of the series under the ABCC (10.2 days). The total number of days lost each year is similar on average under the FWBI (29 866) as under the ABCC (29 950). The Productivity Commission has found that the economic impacts of industrial disputes in the construction industry are ‘very low’.” 
“The ABCC restricts democratic rights: Nicola McGarrity and Professor George Williams from the Faculty of Law at the University of New South Wales say, ‘the ABC Commissioner’s investigatory powers have the potential to severely restrict basic democratic rights such as freedom of speech, freedom of association, the privilege against self-incrimination and the right to silence.'”
“It affects the rights of all members of the community to protest – not just workers in the construction industry,” said Mr O’Connor. He said the Law Council, in recommending the Bill not be passed in its current form, described features of it as “contrary to the rule of law”.
“The most problematic aspects of the Bill according to the Law Council are limitations on the right to legal representation; entry onto premises without consent or warrant; and introducing a reverse onus of proof which may deter action on occupational health and safety concerns.”
O’Connor continued: “The ABCC breaches the principle of equality before the law: Workers in the building and construction industry should be subject to the same laws as apply to other workers. This legislation extends the reach of the ABCC into offshore construction and the transport and supply of goods to building sites.”
“The ABCC doesn’t deal with criminal behaviour, but has powers that go even further than the criminal justice system: It doesn’t matter how many times the Government refers to criminal conduct in the same sentence and the necessity to revive the construction watchdog, it doesn’t change the fact it is an industrial relations regulator. It has absolutely no power to investigate crime and corruption.”
“The ABCC has no protections from abuse of power by the regulator: The Government’s Bill removes the current protection which requires the Director of Fair Work Building to apply to the Administrative Appeals Tribunal to issue an examination notice.”
“It’s like the police being able to conduct a search without going to a Magistrate to justify why they need a warrant,” concluded O’Connor.
Protecting vulnerable workers
In light of news reports in recent months of workers on temporary work or working holiday visas being paid inadequate wages or not being paid at all – issues which Brendan O’Connor has previously spoken about – he was asked about Labor’s plans for protecting such vulnerable workers.
“We have announced the first of our policies  to crack down on worker exploitation,” he said. “It’s important to note this was announced well ahead of the Government’s policy.”
Specific measures include increased penalties for employers who deliberately and systematically avoid paying their employees properly (in this connection, Labor will require labour hire companies to be licensed and breach of the licensing laws will carry penalties of up to $1.1 million) and providing the Fair Work Ombudsman with the powers and resources to pursue employers who liquidate companies so as to avoid paying the money owed to their employees.
Mr O’Connor said the Liberals only announced a policy in response to Labor’s.
“Labor introduced a Private Member’s Bill that sought to enact our policy and we provided the Government a chance to vote for that in Parliament.”
“The Abbott-Turnbull Government is not serious about this issue. It’s curious that they’ve been in government for three years yet have sought to make an announcement about ‘protecting vulnerable workers’ during an election campaign rather than actually legislating to do so,” said O’Connor.
“Let me be clear, in their entire term of Government, the Coalition did not enact one single law which helped exploited workers.”
Labor’s economic program
Mr O’Connor said “Labor will invest in the high-skilled, high-wage, good jobs of the future” in its drive for a more productive, competitive and prosperous economy. Rejecting the possibility of Labor engaging in what he described as “the Liberal Party’s race to the bottom on wages and conditions”, he identified “fairness at work” as also being essential to Labor’s broader economic objectives.
“Only Labor can be trusted to stand up for the wages and conditions of workers in Australia, and only Labor will protect Australian families from Malcolm Turnbull and the Liberals’ plan to increase unfair taxes, privatise Medicare, and attack penalty rates.”
Mr O’Connor said the Government’s disregard for workers has been “shameful”. “It pronounced the death of the car industry and is overseeing the systematic sacking of maritime workers to be replaced by foreign crews for as little as $2 an hour.”
“The assertion that we need to reduce labour costs is a classic conservative construct designed to line the pockets of big business,” O’Connor said. “In relation to the shipping industry and the Abbott-Turnbull Government’s WorkChoices on water, no one would expect an Australian truck driver to be paid $2 per hour to move goods from Brisbane to Melbourne, so why would an Australian seafarer be any different?”
On productivity and competitiveness, Mr O’Connor said “Austrade data shows the Australian construction sector is 19% more productive than global competitors.”
“Labour productivity in this country has been consistently rising for a number of years.”
“Yet wages growth in Australia is at record lows and the Liberals still want to cut wages, their theory is as ridiculous economically as it is unfair socially.”
Defending penalty rates
Mr O’Connor addressed the Productivity Commission’s recommendation for a reduction in weekend penalty rates and challenged the supposition that Australia now operates a “24/7” economy.
“The idea that we now work in a 24/7 economy and therefore penalty rates are irrelevant is just not borne out by evidence,” he said. “Take, for example, august institutions like big banks, the stock market, financial institutions, Courts and Parliaments – they’re not open on weekends. The fact is the majority of people work Monday to Friday. Weekend work is taxing on relationships and health and should be compensated accordingly.”
Mr O’Connor argued that penalty rates also serve a larger role in the economy.
“Labor understands the challenges facing small businesses, but the evidence to suggest that cutting penalty rates will solve these problems is slim.” He said research by the McKell Institute found that cutting penalty rates would harm business, as the disposable income of workers would significantly decrease.
“It is estimated that workers in rural Australia will lose between $370.7 million per annum and $691.5 million per annum; and a loss in disposable income of between $174.6 million per annum and $343.5 million per annum to local economies because of a partial abolition of penalty rates in the retail and hospitality sectors.”
“Penalty rates are not only critical to the individuals and their families who rely on them; if you reduce the take home pay of low-paid workers, you reduce the amount they spend, which will negatively impact the economy as a whole.”
“At a time when we are facing the lowest wages growth on record, Labor supports workers’ penalty rates and will oppose Mr Turnbull’s attempts to cut them.”
“Only Labor will defend penalty rates against the efforts of Mr Turnbull’s Liberals to cut them.”
Mr O’Connor said Labor had taken the unprecedented step of making a submission to the Fair Work Commission arguing that penalty rates must not be cut, and that a Shorten Labor Government will intervene in proceedings before the Fair Work Commission to fight for the retention of penalty rates.
Domestic violence leave
Responding to Federal Minister for Employment, Senator Michaelia Cash’s, expressed commitment to reducing the gender pay gap in her interview in the last edition of Workplace Review (Summer 2016, Vol 7 No 1), Brendan O’Connor said these are “hollow words”.
He said the Senator is “out of touch” when it comes to gender equality. He said in arguing that Domestic Violence Leave will inhibit women being employed and will hold back business, she has walked away from a bipartisan approach to domestic violence completely contradicting the bipartisan commitment to addressing the scourge of domestic and family violence.
“The Abbott-Turnbull Government’s public service bargaining framework forces agencies to strip things like domestic and family violence out of agreements and put them into policy which can be changed on a whim.”
“A Shorten Labor Government will make domestic and family violence leave a universal workplace right, by providing for five days paid domestic and family violence leave in the National Employment Standards,” said Mr O’Connor.
He said the Government has done nothing to close the gender pay gap.
“In fact, quite the opposite. They have taken backward steps, including:
- Stepping away from their responsibility to fund wage increases for social and community sector workers.
- Axing the $300 million fund to give pay rises to childcare workers, the overwhelming majority of whom are women.
- Driving an unfair and ideological bargain in dealing with the public service, which disproportionately affects the pay and conditions of women.
- Freezing the increase of the superannuation guarantee and cutting the Low Income Superannuation Contribution.”
For Brendan O’Connor, the Government’s approach to penalty rates will also have a particularly strong impact on women. “Malcolm Turnbull and his government want to cut penalty rates. But a cut to penalty rates is a cut to pay, and that means workers are worse off. There are up to 4.5 million workers who rely on penalty rates. Workers like police officers, firefighters, paramedics, nurses, retail workers, hospitality workers, workers in manufacturing, in tourism and many other sectors.”
“Traditionally women are overrepresented in the lower paying industries, which rely on penalty rates,” O’Connor said.
Profitability and decent wages – “not mutually exclusive”
“Business and unions have had a huge, divisive wedge driven between them by the Abbott-Turnbull Government,” said Mr O’Connor. “You can’t expect there to be a great deal of trust between the two when the Federal Government has sought to attack the entire union movement.”
He suggested it is possible for employers and employees and their representative organisations to have productive relationships. “Labor believes in genuine consultation with employers, employer groups, employees and unions. We believe in tripartite bodies to provide advice to government on what policies will best facilitate growth in business and employment.”
“There are challenges facing Australian businesses, but the Abbott-Turnbull Government has done nothing to boost consumer and business confidence – in fact quite the opposite,” said Mr O’Connor.
“Labor wants to create the right conditions and policy settings to facilitate collective bargaining in good faith. Businesses being profitable and competitive and workers being paid a decent wage and being entitled to fair conditions at work are not mutually exclusive concepts.”
“Labor believes we can share in business and worker prosperity.”
The future for Australian workplaces
“I’d like to see Australian businesses being as co-operative and competitive as possible but paying our workers a decent wage, which means they can live a full and happy life,” said Mr O’Connor.
“I think one way of achieving this is looking at ways in which we can devolve responsibility in workplaces.”
“Think about this – people have complex lives, many workers when they’re at home have to do the toughest job in the world, they’ve to raise children and support their family. That requires a significant amount of work, a great deal of responsibility and dealing with complex situations. Yet, when they arrive at work many people are told ‘do X’ by Y. All of those fantastic skills they exercise on a day-to-day basis in their personal lives are immediately suppressed in the workplace.”
“I believe there is significant scope for employers to devolve responsibility in the workplace, which I firmly believe will lead to increased productivity and job satisfaction,” concluded Mr O’Connor.
Written by Craig Ryan, Workplace Review editor at Thomson Reuters.