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Tuesday, 26 August 1997
Page: 6922


Mr McMULLAN(9.06 p.m.) —In speaking on behalf of the opposition on the Workplace Relations Amendment Bill 1997, I want to begin by making our unequivocal opposition to the proposals contained within this bill very clear. This bill will take away rights from Australians. It will take them away selectively and, in so doing, it will expose Australian workers to harsh, unfair and unreasonable dismissal without a right of appeal, which in itself is not only on its face evidently unfair but it is also a blatant breach of an election promise.

In commencing discussion on this bill, I would like to first note the fact that anybody who has been involved in public life in Australia must know that there has been a considerable degree of misinformation and myth-making around the issue of unfair dismissal laws. Nobody could deny that there was substantial concern expressed by the business community about unfair dismissal laws during 1995.

I think history will suggest that much of the hysteria surrounding the unfair dismissal laws was the product of a political scare campaign run by the coalition in opposition. What we have here today is an attempt to recreate what was considered to be a successful political strategy in 1995. It is a habit of not only people in politics but people in all walks of life to seek to recreate their past successes. This was a stunt that worked in 1995—the coalition said, `Things are not going too well, let's try it again.' But let us, on this occasion, try to put some perspective, maybe even some facts, into the debate.


Mr Abbott —That would be very unusual.


Mr McMULLAN —It would be in this debate. Nobody has tried it on your side, I have to say. The starting point is to understand and appreciate the nature of the protection unfair dismissal laws provide and the importance of that protection. Let me make it very clear that this is the core of this matter that is before us this evening. The unfair dismissal laws, as they presently stand—and this is this government's legislation, the legislation they drafted—provide that employees cannot be terminated in circumstances that are harsh, unjust or unreasonable. These are clear, unambiguous words that have an accepted meaning within the community and that the community can readily identify with.

What we have in this legislation we are debating tonight is a conscious decision by the government to remove this protection from a very large subgroup of Australian workers—that is, all those people who are employees of companies with 15 or fewer employees who commence work after the passage of this legislation. That means those people—and that will be a growing number of people—who are employees and whose dismissal is demonstrably harsh, unjust or unreasonable will have no remedy, no right of appeal. Today if that happens to you, you have a right of appeal. If this bill passes that right will be taken away—you will not be protected against a harsh dismissal, you will not be protected against an unjust dismissal and you will not be protected against an unreasonable decision.

What an achievement by the government! What they will have achieved is to take away the rights from what will become hundreds of thousands of Australians who will lose their rights under this legislation, and for nothing. The government admitted that this was the case—not with any enthusiasm, they did not actually volunteer it, but the officials of the Department of Industrial Relations on 5 June responded to estimates committee questions from Senator Collins as follows:

. . . does the department accept that if the proposed small business exemption regulation presently tabled in the Senate becomes law then some employees presently able to seek relief against harsh, unjust or unreasonable termination will no longer be able to do so?

Answer, `Yes.' Next question:

Does the department accept that if the small business exemption is made applicable to all employees in small business then many more employees presently able to seek relief against harsh, unjust or unreasonable termination will no longer be able to do so?

Answer, `Yes.' This fundamental removal of the right of appeal, which the Prime Minister (Mr Howard) and the now Minister for Workplace Relations and Small Business (Mr Reith) promised would be provided at the election campaign, is fundamentally important for two reasons I want to make tonight and, if I have time, I will demonstrate how it goes to some very profound social consequences to which I wish to refer.

The first of these reasons to which I wish to refer, because it is often fudged, is that no other law protects employees from being dismissed in circumstances that are harsh, unjust or unreasonable. The minister, when questioned, always says, `But they have the protection of the anti-discrimination provisions.' That is true, that is welcomed, but it is not enough. If this legislation passes, the affected employees will have no other protection against harsh, unjust or unreasonable dismissal.

That would be important in any circumstances, but it is fundamentally important in Australia in 1997 when the prevailing issue in Australian workplaces is job security. If you go to Australian workplaces—and you do not go there to just talk to the management, walk around, wave and leave; you actually sit down and listen to the workers in those workplaces and give them a chance to overcome their surprise that someone is listening to them instead of talking at them—very soon the issue of job security comes to the fore. First and foremost the prevailing issue in Australian workplaces is job security.


Mr Charles —What do the unemployed say about their job security?


Mr McMULLAN —We will come to the consequences of this bogus argument that this will create jobs in just one moment, and I look forward to the opportunity. But let us say first of all that what will not help job security is legislation which says that it is now easier to sack you than it was and that you have no redress if it happens. No Australian can be more secure in their employment as a consequence of that; all they can be is more insecure. It is another one of those circumstances that recurs in every piece of industrial relations legislation we get from this government: some people lose their rights, nobody gains. Nobody gains one right or potential benefit out of this. All you have is people losing their rights.

We do have attempts to explain that other laws might provide protection against dismissal. The anti-discrimination provisions of the Workplace Relations Act, which are important, are very narrow. They are confined to circumstances in which the dismissal was motivated by discrimination and like proceedings. It will not deal with harsh, unjust or unreasonable dismissal.

For example, if a woman were to be dismissed simply because she was a woman she would be protected. If she were dismissed because she rejected the sexual advances of the employer she would not be protected. That would be harsh, unjust and unreasonable but, if it happens in a small business, too bad. You have no recourse at all.

There are notice provisions in the Workplace Relations Act that say employees cannot be dismissed without a maximum of four weeks notice, but that is all those provisions do. Employees can be dismissed for the worst of reasons, for the most harsh and unreasonable of reasons, but if they are given four weeks notice that is okay. There is, I suppose, ultimately the protection of the common law of contract but if we thought that was a fair and reasonable position we would not have unfair dismissal laws in the first place. To require employees to use the common law courts for redress against dismissal is sending them back to the 19th century.

This is not some sort of mere technical debate. We are not talking about here, as we will be with some other pieces of legislation relating to the Workplace Relations Act later in the session, some important but fairly dry and mundane technicalities about the nature of the legal framework within which industrial relations is conducted. Those matters are important but they interest only a small range of people with a specialist interest. Here we have something that goes to the very core of the lives of thousands of Australians and the households that depend on them: the nature of the security that people have at their work, their capacity to have, retain, enjoy and participate in their job in fair and reasonable circumstances, which not only affects their situation at work but affects their situation at home and in every other element of their participation in our society.

People are losing these rights—rights which Australians have come to expect not for very long at the federal level. I think even this government promised and felt they were rights employees should have. If people change employment after this legislation is passed and work for a small employer, they will have no redress against harsh, unjust or unreasonable dismissal.

Let us look at some of the circumstances that we have highlighted, where employees who currently have protection would lose it in the most unreasonable of circumstances, in the case studies that we have outlined to this parliament in the past. These examples vividly demonstrate just how important the unfair dismissal laws are in protecting employees from dismissal in offensive circumstances.

We had the case of the employee dismissed because she refused to assist her boss in ripping off the tax system. We had the employee dismissed because he refused to sack a pregnant subordinate. We had the employee dismissed because of an unsubstantiated allegation to which he had no chance to respond. We had the employee dismissed after his wife told the boss he had cancer. We had the employee dismissed for refusing to certify as roadworthy the car of a boss's mate. He refused to break the law and he was sacked. Under this law, it is, `Bye-bye. Bad luck. You had better pass the car and put the unroadworthy vehicle on the road because otherwise you will be down the road.' That is what this bill means.

Let us look at some of the comments made by Margaret McHugh, whose son was able to use the unfair dismissal laws to force a settlement from a boss who had done nothing to prevent him being abused and victimised at work. These were the comments she made about the importance of the unfair dismissal laws to her, her family and her son. I will not quote them all because they are quite lengthy, but she made two important points that I think the House should listen to. She said:

To take away a person's right to access the Industrial Relations Commission is totally unfair . . . To change this legislation to not allow (employees) to access the Industrial Relations Commission when they've had their dignity removed completely is just so unfair.

Then she went on:

It's affecting a group of people that don't have the money to go to lawyers and sue their employers civilly. It's not even something they'd want to do . . . They just want acknowledgment that (their dismissal) was wrong . . . At least with the Industrial Relations Commission we could access that ourselves. We didn't have to wait for someone to do it for us.

This is the final point she made, and it is very powerful:

We had a right to just go there and say this has happened, and leave it up to the conciliation meeting to decide whether we were right or wrong.

This is the simple, basic right that the government wants to take away from thousands of Australians. Why? What a strange objective for a government to have. They have a strange ambition to say, `When our bill has its full consequence, we will have succeeded in taking away the rights of hundreds of thousands of Australians'—not just a few.

This is no modest government. They will have damaged the rights and entitlements of Australians wherever they live. These changes are egalitarian. It does not matter where people live, they will lose their rights if they change their employment and begin to work for an employer with fewer than 15 employ ees. In some industries that is every employer; it does not matter where people go.

That I think is the most fundamental argument against this proposed exemption. But let us think about the circumstances and broaden the basis of this concern. The government has trumpeted politically that the unfair dismissal provisions—what they call Laurie Brereton's laws—discouraged employers from employing people. I want to come to some evidence, if I have time, to challenge that, or certainly the extent of it. But, even if it were true, let us face the fact: those laws do not exist any more. The government has already changed those laws. The Prime Minister said they had wiped them away, they had created a simpler, more balanced system that provides a fair deal all round.

If the government has created a simpler, more balanced system that provides a fair deal all round, why is it taking that simpler, fairer deal away from some people? This is called a fair deal halfway round, a fair deal for some but no deal for others. This proposal creates an exemption to the government's own law. It has nothing to do with replacing Labor's unfair dismissal laws. That has already been done.

Let us have a look at a second aspect of the process that makes it quite clear this is a political stunt—a measure designed to give the government an excuse for not solving unemployment, not a measure to actually enhance anybody's rights, entitlements or life opportunity. This emerged in the government's response to the Bell report, which did not recommend an exemption for small business from the unfair dismissal law. It proposed a review of the laws after 12 months.


Mr Martin —Recommendation 13.


Mr McMULLAN —Recommendation 13 is one that the opposition supported. But the government chose to ignore it and did not bother to have a review after 12 months. They preferred to abolish the operation of their laws for some Australians straightaway, after five months. It is blatantly in breach of the government's pre-election guarantees. What did they say before the election? The Minister for Workplace Relations was quoted in the Sydney Morning Herald on 20 February as saying that the redrafted system would not contain any exemptions. Silly me; I believed that—I thought that meant there would not be any exemptions. But then on 28 February he was quoted as saying:

Look, our position's very clear. If you've been unfairly dealt with at work, then you should have a right of appeal.

That is exactly what this debate is about. If that is true, you should withdraw this bill. The now Prime Minister, when he was the Leader of the Opposition, said to John Laws—and he must have meant it if he said it on the John Laws program:

I'm not going to have a law where an unreasonable employer can capriciously sack a decent, hardworking employee.

He said to Keith Conlon:

I'm not going to make it open slather. I'm going to replace it with a law that's fair to both sides so that if you are doing your job properly you can't be capriciously dismissed.

There is lots more. Let me just give you one more, but I could give you even more. In his headland speech No. 2, so of course we have to take that pretty seriously, he said:

Let me make a hard and fast commitment that when we win government we will ensure that Australia has a balanced unfair dismissal provision which is fair to both employers and employees. We won't tolerate unreasonable dismissals.

Until today I never understood how you could say all those things and then introduce this bill. But now I understand. Somewhere in one of those quotes he used this magic phrase: he must have said `never ever'. We now know that that is Liberal Party code for `as soon as I get a chance'. He said, `I will never ever introduce a GST.'


Mr Martin —He didn't say that, did he?


Mr McMULLAN —He did. He said, `Never ever.'


Mr Martin —No, that's not what he said today!


Mr McMULLAN —As Leader of the Opposition he said, `We will never ever introduce a GST.' And now we find that he is going to do it as soon as he can. So I guess somewhere, if you read all the transcripts, you will find that they used the code word. They said, `Never ever will we introduce an exemption to unfair dismissals.' That meant, `Just give us a chance and we'll be in their taking your rights away from you.' It is as blatant a breach of a promise as any, and any worker would have been entitled to think that this might have been a core promise.

The exemption is also fundamentally discriminatory. It is unfair to employees and to decent employers. It discriminates between employees of small business and employees of big business. It creates two classes of employees in Australia. It discriminates between apprentices and other new entrants to the work force, including trainees. I welcome the fact that the proposal does not preclude apprentices from the unfair dismissal laws. Apprentices who work for small businesses will not be exempt. Why? I am pleased about it because I do not think anybody should be exempt. But, if this is a reasonable proposition, why shouldn't it apply to everybody? Simply because it is just too patently outrageous to allow it to apply to apprentices.

I hope nobody will notice, if you employ an apprentice, a trainee and another young worker on the same day, that one of them will have appeal rights and the other two will not. If you sack them all for the same reason, one will have the right of appeal and the other two will not. What is the justification for that? It discriminates between workers who continue a job after a law commences and those who start a new job—two workers stand next to each other, do the same thing, get dismissed for the same reason and one has a right of appeal and one does not. It does not discriminate between cases on the basis of their merit but on the basis of the coincidence of the workers' employment contracts.

It is also important to note that this is a proposal that is fundamentally unfair to decent employers. Decent employers who do the right thing by their employees will have to compete with the shonky operators who misuse and abuse the new exemption they will have. There is a very real danger that this sort of competition will force decent employers to lower their standards just to survive. This lowering of standards will occur at the expense of the rights of even more employees.

Why does the government believe this exemption is necessary? It wants to divert attention from its failure in unemployment. It wants to pretend that this will do something about creating jobs. Let us look at the facts. If the previous unfair dismissal laws had been having such a profound negative effect on employment, you would think that when they were swept away employment would have leapt, improved dramatically.

There is one state where you can look at the situation quite clearly, because in Victoria there are no complications of conflicting state legislation; it is all the Commonwealth's law applying from 1 January. What we find is that since 1 January, since the unfair dismissal laws changed, employment has fallen in Victoria. It was growing faster before the laws changed than after. In February, March and April of 1997, as this act started to take effect, the number of jobs was falling; yet in October, November and December, under the old laws, the number was increasing. I do not pretend it is cause and effect, but let us get rid of the rubbish that there was a suppressed enthusiasm to employ that only needed the unfair dismissal laws to be swept away. The facts do not support it.

So where in the research evidence is there something that says that employers are just waiting for this next round of exemptions from unfair dismissal laws, that there is a latent enthusiasm to employ, notwithstanding that every survey says they think the economy is as flat as a tack and they want the government to do something about that, which they will not do?

The Department of Industrial Relations very loyally have been trying very hard to find some evidence to support the government's position. They are a very good department trying very hard to justify the unjustifiable. They have harked back to the three Yellow Pages surveys, which up until February showed that five per cent of small businesses are concerned about industrial laws but 84 per cent are concerned that lack of government action has failed to get the economy moving. But they could not possibly know that today we were going to get this report that said, `What are the priorities for small business in Australia? Unfair dismissal laws, three per cent.' Three per cent said it was the most urgent priority, whereas they all thought the government ought to be out there trying to get the economy growing.

The other surveys that people rely on are Recruitment Solutions and more recently Morgan and Banks. Let me refer to each of them, if I have time. Recruitment Solutions said that 90 per cent of employers were not affected in their employment decisions by the existence of unfair dismissal laws, and Morgan and Banks said that at least 80 per cent of small businesses did not believe the existence of the unfair dismissal law adversely affected their decisions to employ new staff. Those figures are very high—80 per cent, 90 per cent—but they are under the previous government's laws. Those were surveys conducted during 1996, so surely it must be better now. This government swept those laws away. It has got to be more than 80 per cent, it has got to be more than 90 per cent of small businesses which are not affected. It must be nearly 100. Perhaps, the Yellow Pages suggests, it might be 97.

But certainly this is not what is stopping small business from employing people—it is the fact that there is no demand for the products they want to sell because the economy is as flat as a tack. So it is no wonder that the minister on the ABC the other day said that he has been doing his own surveys. We tried to find out where they were. We asked the department. The department did not know. I think that means he was in the cabinet room or maybe the party room. He was not talking to anyone who employs more than a few electorate staff. They may all have agreed with him, but none of the published surveys do. Small business has moved on. They want the economy moving. They want some economic growth and then they will increase employment. This is not the solution they are looking for.

Let us go back to the ultimate arguments about this particular matter. Let us have a look at what the arguments against this are, in summary. The evidence so far is that chan ging the unfair dismissal laws has not improved employment. Secondly, the proposed exemption is just so blatantly inconsistent with the government's pre-election guarantees. Thirdly, the proposal will only add to the prevailing sense of job insecurity. Fourthly, the proposal does not distinguish between unfair dismissal claims on the basis of the merits of the case merely on the coincidence of your employment contract. Fifthly, the proposal is fundamentally unfair to employees. Sixthly, it is fundamentally unfair to decent employers.

In those circumstances, what does this bill have going for it? Australians today have what the Prime Minister promised them: if they are subject to harsh, unjust or unreasonable dismissal they have a right of appeal. That is what they were promised and that is what they have got. What this bill will achieve, if it is passed, if it is successful, is to say, `Those rights you had you do not have any more. You will not have the right of appeal if you are subject to harsh, unreasonable or unjust dismissal.'

What a claim, what an achievement, what a thing to be proud of. That is why we are opposed to this bill, that is why we will vote against it here, that is why we will vote against it in the Senate and that is why we will keep voting against it if it comes back on any future occasion.