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Thursday, 21 February 2002
Page: 697


Mr HATTON (11:18 AM) — The Workplace Relations Amendment (Fair Dismissal) Bill 2002, which we are dealing with today, shares a great deal in common with a series of other bills that have been introduced into this House going back to 1994, when the first unlawful dismissal bills were passed by the Keating government. In government Labor made a number of modifications to those bills to make them more workable and to take the strain off small business, particularly very small businesses. As with any good and normal legislative process, once a bill is in operation and in practice, as problems arise and they are brought to the attention of the minister and the government, legislative change is undertaken to modify those things which are seen in practice to not be as workable as people thought in the first instance.

In fact, the whole history of the parliament dealing with any issue whatsoever virtually follows that model. Given whatever is first proposed, you do not end up with that over time, because conditions change. You also do not end up with that without modification over time, because of the nature of the pressures brought to bear within the economic system and employment area. When there is evidence that is strong and compelling and when the government is presented with that evidence, it is argued out over a period of time and you get change, and that change leads to a different situation both for employees and employers.

Not only have a series of changes been made to the relevant bills within the Keating government period; since 1996 a series of attempts have been made by the government to bring in their own unfair dismissal laws, basically to turn the previous situation on its head. Most of those have been knocked back by the Senate, but there have still been significant changes made under the aegis of a number of bills—changes to elements of dealing with this area have been accepted— and we are dealing with a landscape very different from what was there in 1994.

But one of the problems in dealing with this debate is the fact that most of the arguments have not moved on much from 1994. Most of the arguments within the business community have not changed much—people have stuck to fairly rigid positions—and certainly within the government very little has changed. With the former minister—the former member for Flinders, Mr Reith—and the current minister the line is still the same: the greatest thing that could be done for small business and the greatest thing that could be done for job generation in the community in relation to small business is to bring in the government's laws. Just last week an argument was put in regard to this bill and we note, and I have noted this in a previous speech, that the bill's wording has been changed from `unfair' to `fair' dismissals. The only couple of fair dismissals that I could think of that would be relevant at the moment would be the dismissal of the Governor-General and the Prime Minister. We should still be dealing with the notion that it is a question of whether a dismissal is unfair or unconscionable—and a newspeak change to just the wording and expecting that to help the bill get through does not assist anyone, either those in small business or employees.

The core of the problem with the government's approach is that it has been political. It is political in this bill, because they do not expect it to get through. They have had that past experience with the attitude taken by not only our party but also the Democrats and the Greens in the Senate. And they do not expect to get this bill through either. They hope that they will end up having a double-dissolution trigger and that they can wave that around. They can have it in this regard.

The approach we have taken has been informed over the years by the reaction of people within the business community and the small business community, and of employees. We do not think that you can change one category of employees, those employed by small businesses. And the change in this bill is, instead of looking at businesses employing fewer than 15—which was in the prior government bills put forward—to up that to businesses with fewer than 20 employees. That is the only fundamental change between this and prior proposals. What we are dealing with here are only those employees affected by federal awards. Given that everybody in Victoria is on a federal award, they make up more than half the bulk of about 7½ thousand claims in the past year. So I want to concentrate on a couple of these areas.

We think it is extremely important that low paid employees in particular—and that is the tendency of people in the small business area—not only the people employed but their families who are dependent upon the person receiving the pay for that employment are dealt with fairly and equitably, and dealt with in the same manner as every other employee in Australia. Secondly, we do not agree with the government's assertion that, if you pass this bill, you end up with 50,000 or 53,000 new jobs. We have a fairly strong position with regard to that, because when these matters were dealt with by the full Federal Court, it came to exactly the same kind of determination. The government had previously attempted to put this kind of case—it has had a series of assertions, both in opposition and in government—where it has argued that you can wave a magic wand in this area and, whoops, employers will think that they will not have any problems anymore because, if they put an employee on, they can give him the flick. As quick as a wink, that person is out the door and they will shovel someone else in for a short period of time.

The Federal Court argued quite strongly and comprehensively that there was no evidence whatsoever presented to it that there would be this job creation effect. I quote from their judgment of 16 November 2001:

It seems unfortunate that nobody has investigated whether there is any relationship between unfair dismissal legislation and employment growth. There has been much assertion on this topic during recent years, but apparently no effort to ascertain the factual situation.

The government has been in office since March of 1996; has it ever undertaken any analysis of this at all? The answer is no. But it did have an expert in this area front up to the court in dealing with Hamzy v. Tricon International Restaurants, trading as KFC. That expert was Professor Mark Wooden. He put his argument that there was an employment effect and that that employment effect was significant in relation to casual employment and, therefore, for part-time and full-time employment. This is what the full Federal Court said in rejecting his argument:

Professor Wooden did not offer any empirical evidence to support his view. He was unable to do so. In cross-examination Professor Wooden said 'there certainly hasn't been any direct research on the effects of introducing unfair dismissal laws'.

What has the government been about? Given that this has been a talisman and given that, through the series of bills it has put forward, it has been like lightning crackling in the atmosphere, where is the hard evidence? The full court, quite rightly—and even Professor Wooden, the government's witness—indicated that there is no empirical evidence at all. It is all absolute mere assertion, with no fundamental basis to it at all. I am sure everyone would like to know exactly what the situation is because it is the government's core case. I quote from page 10 of the background paper from the Parliamentary Library:

Professor Wooden also conceded that growth in employment in Australia in the 1990s had been at its strongest when federal unfair dismissal laws had been at their most protective.

Now isn't that a strange thing—`at their most protective' and the employment growth had been strongest. It goes on:

He also agreed that the `driving force behind employment is clearly the state of the economy' and not the existence or non-existence of unfair dismissal laws.

We could say, as Bill Clinton did when he said to George Bush in 1992, `It's the economy, stupid.' It is not the social relations and it is not the working relations; it is the fundamental health of the economy that determines whether or not people get jobs. That is as simple and fundamental an idea that even the current minister for employment, and the prior one, should have been able to grasp. Even the Treasurer at times gives some indication that he has some notion of that fact.

So Labor have put a series of amendments through our shadow minister. We argue that you need to have a sensible and balanced approach to this, that individual workers should not be put into a separate category of their own and that the core problems that small business has, which have been addressed over time, need to be addressed by having a system that is simpler, clearer and more workable. We have tried to work at that in the past. If there are procedural difficulties, as I know there still are, we need to have a better model to deal with those issues. You cannot just roll into the place and, on the basis of mere assertion, run the lightning through the joint and then expect that people will just cop it.