Mr McCLELLAND(12.13 p.m) —I oppose the Workplace Relations Amendment Bill 1997 . The former speaker, the member for Grey (Mr Wakelin), said that the more incentive we can give small business to employ, the better. That is not objectionable, and indeed it is a worthy comment. But the incentive offered in this bill is the incentive of depriving workers of a `fair go all round'. They were the words shouted at the dispatch box by the Minister for Workplace Relations and Small Business (Mr Reith), then the Minister for Industrial Relations, on a number of occasions when he referred to this government's approach to unfair dismissal—a fair go all round.

Indeed, section 170CA of the act—the objects of the unfair dismissal provisions—specifically refers to that expression: a fair go all round. Reference is again made in that section by way of a note to a famous case of Lotty and Holloway; the case relied upon for the concept of a fair go all round. In that case what did Mr Justice Sheldon say that concept involved? It involved the fundamental right of due process, of procedural fairness based on principles going back to the due process clause in the Magna Carta—a fair go all round. What did Justice Sheldon say? It was the absence of adjectival tyranny.

The government is trying to restore to small business the ability to sack people by carrying out adjectival tyranny. The fact of the matter is that dismissal is a punitive weapon that strikes right at the heart of a worker's financial survival. It is not only a worker who is affected but also the worker's family. Put dismissal on one side of the equation and on the other the inconvenience that the former speaker mentioned of having to attend a conciliation conference. What a terrible thing! There is a worker and his family on one side, and on the other is the inconvenience of having to spend half an hour at a conciliation conference. There is no equation. There is simply no correlation at all.

ABS statistics show that federal unfair dismissal laws are going to affect at best seven per cent of small business employers. The government knows that its unfair dismissal provisions apply to only small businesses under federal awards; indeed, most are under state awards. So it is a con. Professor Ron McCullum, of the University of Sydney, said, `This is at best a symbolic gesture; at worst a big con.'

It is a complete and utter con because, in any event, it will not quarantine small businesses from actions for wrongful termination. There are a number of cases where common law damages have been given because of the action of wrongful dismissal. It amounts to a breach of contract. Such cases include Gregory v. Phillip Morris, Wheeler v. Phillip Morris and the Georgevski case, to name a few. They are legion in the United kingdom and in the United States. They are cases in which damages for breach of contract have been awarded because workers have been wrongfully dismissed.

Also, the government fails to appreciate that under section 178 of the act there still remains the right to impose penalties for breaches of awards, enterprise agreements or Australian workplace agreements. Because the jurisdiction has been referred back to the Federal Court, it has the power to grant injunctive relief, that is, to enjoin an employer from sacking someone unlawfully. So, again, a remedy is already there under section 178 of the act. It is a con to all concerned to say that this is going to quarantine small businesses from actions for wrongful dismissal. What it does is take a simple procedure out of the equation, one in which all parties are afforded a fair go all round.

The Federal Court, on authority, has the power under its accrued jurisdiction to grant the relief of specific performance of a contract of employment. Turner v the Miners Federation is a well-known authority for that proposition, where the contract of employment was specifically restored on the orders of the Federal Court of Australia. It is a con to suggest that this is going to quarantine small business. You should be telling your small business constituents, if they are feeding you that line, that they are under a fundamental misconception.

The paradox of the government's bill is that it is actually going to make life more difficult for non-unionists. Section 170HA of the act specifically says that the unfair dismissal provisions do not prevent unions notifying industrial disputes and seeking awards or orders under other general provisions of the act.

I refer again to well-known cases where unions have been successful in obtaining reinstatement orders on behalf of workers: Ranger Uranium, the Boyne Smelters case, the Wool Dumpers case and the famous case of Vista Paper Products. These are all cases in which unions were able to establish an unfair dismissal remedy even before the former government's unfair dismissal legislation. They were able to establish a remedy because of the way their dispute notifications were framed on behalf of union members.

So, paradoxically, this government has deprived non-unionists of a fair go all round, but unionists still have these mechanisms. A speaker said earlier that employers were anxious that they were going to be sucked down a litigation route. If anyone wants to know a complicated litigation route, they just have to be sucked into this system. They will then find out that a simple procedure which allows for conciliation, where the vast majority of claims are resolved, is far more preferable. You will find that small business owners facing these complications will be saying, `Take us back to a simple procedure, a procedure where everyone is given a fair go all round.'

Let us test the rhetoric of the government and see whether it is correct that there is genuine anxiety on the part of small business in employing people. On the minister's figures, there has been a 56 per cent reduction in unfair dismissal claims under his legislation. Has this led to a 56 per cent increase in employment? No, it has not. It is absolute rubbish.

As the member for Melbourne (Mr Tanner) said, the Morgan and Banks survey indicated that less than 16 per cent of employers were concerned about it. So we are talking about less than 16 per cent of seven per cent of employers, that is, small businesses under federal awards. How many jobs are going to be created because of dispelling this unfair dismissal claim anxiety? Not one job.

Mr Hardgrave —You don't really believe that, do you?

Mr McCLELLAND —I do not believe it? With respect, you can say in your speech how many jobs are going to be created because of this legislation. I will hold you to it. Not one will be created. I will tell you why not one will be created.

Mr Cadman —Because of the New South Wales government.

Mr McCLELLAND —Before you speak, you have a look at each other state's legislation—except Victoria, of course. If there is genuine anxiety, as was noted by the former speaker, existing small businesses have a way around it. They can employ people for a specified time. They can employ people for a specified task. They can employ people on a period of probation. They can employ people for a qualifying period. Indeed, they can employ people on a casual basis. These options exist now.

Instead of beating up these fear campaigns when you are addressing meetings of Rotary and so forth, you should be trying to get Australians employed by dispelling the anxiety. You should be saying, `If you do have an anxiety, these remedies already exist.' They already exist in section 170CC and the regulations. With respect, those on the government benches are as bad as another infamous member of this parliament who is whipping up scare campaigns on various other issues.

If, as appears to be the case, the economy is slow because of insecurity—which results in the fact that people are not spending their money through small businesses thus reducing the turnover of small businesses—what is this bill going to do? It is going to do nothing at all to dispel that insecurity. How can you dispel insecurity by making it easier for workers to be sacked?

The reality these days is that virtually any worker over 40 has problems if they are dismissed, and if they are unskilled they are certainly worse off. If they have a disability they are worse off still and, in terms of disability, a lack of English skills is a significant disability. How are those vulnerable people going to feel more secure and more prepared to spend their money if they are deprived of a fair go all round? That is what this bill seeks to do.

If that fundamental right, the concept of a fair go all round—which is a concept, as I have noted, based on principles going back to the due process clause of the Magna Carta—is to be removed, it should only be removed if it is clearly demonstrated, on the basis of fact and not of hollow rhetoric, that it is in the greater public good.

As I have indicated, that cannot be demonstrated, for two fundamental reasons. The first is that, in any event, this bill will not quarantine small businesses from wrongful termination actions. They will still exist to give courts the ability to award damages and to give common law courts and the Federal Court the ability to award specific performance. The second point is that, if genuine anxiety exists, it should, as I have com mented, be relieved by responsible leadership of the country. And that responsible leadership should point out to small businesses, if they experience that anxiety, the options they have, including employing someone on a three-month probation.

All that is going to happen under this bill is that you are going to flatten the wage rates. Small businesses will be able to employ juniors and, as they start to creep up in age and are about to jump up another leg of their award entitlement, it will be out the door for them. But you will have to get them out the door before the 12 months is up. It is going to be a revolving door for younger workers, because you can only pay younger workers lower wages.

Economic growth unquestionably is being impeded by job insecurity, and that insecurity is fundamentally affecting small business. This bill is depriving workers of a fair go and adding to their insecurity and, hence, actually damaging small business.

I understand that this bill is the first bill that may give rise to a double dissolution. If it does, it will do so—in the words of Professor Ron McCullum—on the basis of a con. If it is on that basis that a trigger is activated, this government is in real trouble. I, for one, would welcome an election conducted on the issue of whether workers in this country are entitled to a fair go all round.