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Thursday, 21 February 2002
Page: 709


Ms BURKE (12:23 PM) — The Workplace Relations Amendment (Fair Dismissal) Bill 2002 can be summed up in three simple words: harsh, unjust and unreasonable. Regardless of what the member for Riverina says, the current legislation puts the onus of proof on the employees to demonstrate that they were the ones who were unfairly dismissed. The rights in this legislation currently sit with the employer and those on the other side of the House who want to walk in here and waffle off pure and utter rhetoric should actually know what in the hell they are talking about, because none of them have so far in this debate.

The intention of this bill—the Workplace Relations Amendment (Fair Dismissal) Bill 2002—as stated in the explanatory memorandum is to:

... prevent small business employees (other than apprentices and trainees) from applying under the WR Act for a remedy in respect of harsh, unjust or unreasonable termination of employment ...

We have heard people saying this will not preclude people from going for unfair dismissal. How ridiculous is that? It precludes them in respect of `harsh, unjust or unreasonable termination'.

This bill is designed to remove many employees from the unfair dismissal provisions of the Workplace Relations Act. Indeed, 3.12 million Australians, of whom 42 per cent happen to be women, will be removed from the act because that is how many people currently work within small business. Behind all the government's rhetoric, the bill before the House seeks to make it possible for workers to be sacked unfairly—sacked in a harsh, unjust or unreasonable manner. Even the name of this bill, in a Nineteen eighty-four-esque manner, gives an indication of its intent. The Workplace Relations Amendment (Fair Dismissal) Bill 2002 is surely a parody. As in Nineteen eighty-four, where the Ministry of Truth was dedicated to the dissemination of untruths, this bill in stark contrast to its title is about allowing people to be sacked in an unfair manner.

The government has attempted, and will undoubtedly continue to attempt, to portray the opposition's genuine concerns regarding this bill as anti business. This is not the case. Labor is committed to working with employers to make the operations of unfair dismissal laws less procedurally complex and less costly. Let's face it: it is costly for the employee who takes a case as well. The government has attempted, and will undoubtedly continue to attempt, to use this proposal as a political issue rather than attempt to provide a fair framework for employee-employer relationships.

Labor is not anti small business. Indeed, in the last election it was only the ALP that put forward genuine policy reform which would have been of any benefit to small business. The ALP's policy of simplifying the GST, which was warmly welcomed by the entire small business community, would have seen businesses prosper and active employment grow more than any other action proposed by this government then or now. In addition to this, Labor is interested in putting into place circumstances where employers and employees can work cooperatively while maintaining appropriate protections, and a protection against harsh, unjust or unreasonable termination of employment is just that—an appropriate protection.

There are a number of conceptual problems with this bill. Probably the most glaring unfair component of the thinking behind this bill is that somehow Australians should be treated differently for no other reason than the size of their employer. This is just ridiculous. For employees to have a reduced level of protection from harsh, unjust or unreasonable dismissal simply because they work for someone who has fewer than 20 employees is not just unfair but, as I say, nonsensical.

The government, and particularly the Minister for Employment and Workplace Relations, have asserted that through the removal of unfair dismissal provisions employment in Australia would increase. Indeed, the minister has come up with this lovely figure of 53,000 additional jobs which would be created. He has added CPI to the previous minister's addition of 50,000. In this House, I believe that we are genuinely interested in finding ways of increasing employment. I believe both sides wish to see that, but I just cannot see the logic behind the proposition that making it possible to sack people unfairly will somehow increase employment growth. It might create employment turnover, but it is certainly not going to create more jobs.

In this matter we do not just have to rely on what we say on this side of the House or what came out in the last Senate inquiry; we only have to turn to the Federal Court decision of 16 November 2001. The minister's own expert evidence provider, Professor Wooden, was unable to provide evidence that the removal of unfair dismissal provisions would increase employment. The case was particularly concerned with the application of unfair dismissal provisions to casual employees. However, the judgment makes a number of interesting assessments of the evidence presented in the case and a number of conclusions that are relevant to the concept behind the provisions in this bill. I would like to quote at length from the judgment:

Professor Wooden's attention was drawn to the ABS figures on employment growth. It was pointed out to him that, in the period of approximately three years, from March 1994 to December 1996, during which the most comprehensive unfair dismissal protections of the 1993 Act were in place, employment growth was stronger than in the following three years, during which less comprehensive protection applied. Employment growth under the 1993 Act was also stronger than in the three years immediately before the commencement of the Act, when there was no comprehensive unfair dismissal protection.

Professor Wooden agreed `the peak in increased employment happens to coincide with the most protective provisions, from the employees' point of view'. He also agreed that the pattern in relation to permanent employment was similar. It was suggested this `rather demonstrates that the existence or non-existence of unlawful dismissal legislation has got very little to do with the growth of employment and that it is dictated by economic factors'. Professor Wooden agreed `the driving force behind employment is clearly the state of the economy' and mentioned the recovery from recession after 1993.

But the conclusion from the judgment is possibly the most interesting portion of the document:

Whether the possibility of encountering an unlawful dismissal claim makes any practical difference to employers' decisions about expanding their labour force is entirely a matter of speculation.

We cannot exclude such a possibility; but, likewise, there is no basis for us to conclude that unfair dismissal laws make any difference to employers' decisions about recruiting labour.

There it is—the court decision in black and white. The government is using as justification for this legislation an assertion that it will create a mythical 53,000 jobs and, based upon evidence including evidence from the minister's expert witness, the Federal Court found that there is no basis to conclude that unfair dismissal laws make any difference whatsoever to employers' decisions about recruiting labour.

This bill is just a red herring to get away from the real concerns of small business, particularly issues of the GST. In the last comprehensive federal government survey only 0.9 per cent of small businesses gave unfair dismissal laws as a reason for not hiring staff. Figures from the Australian Bureau of Statistics show that less than 0.3 per cent of small businesses actually experience federal unfair dismissal claims annually. That is a complete and utter furphy.

As an industrial relations practitioner who has actually experienced both sides of the fence as an employer advocate and a trade unionist, I come to this debate with a level of understanding. Those opposite would have you believe that everybody on this side defends to the death every unfair dismissal. That is true if the unfair dismissal were unjust, harsh or unreasonable. Many of us have had to advise members, `You have done the wrong thing and you will have to cop it. You are actually going to have to walk.' That is a fairly onerous thing to have to do. On the last celebrated case I appeared on, a woman was sacked because she refused to go on a date with her boss—after being with a company for five years as an exemplary employee. I was prepared to fight to the death for that woman to get her job back. In the end she did not get her job back; she got a payout. The boys ganged up and she never got her job back. In cases of fraudulent activities that I have also had to deal with, if somebody has been found with their hand in the till, you stand there and say, `You have done the wrong thing and you have to go.'

I have also had to sack people. It is a very unpleasant experience fronting up to someone and saying, `We are terribly sorry but you have been dismissed.' I have not heard anybody on the other side—even though they keep ranting and raving about their small business experience—talk about how they have gone to somebody and said, `I am terribly sorry but you have done the wrong thing not only by your employer but also by your immediate co-workers. You are going to have to take dismissal.' I have defended the actions of the employers I have represented in commissions in keeping that person sacked. It is all about balance; it is about reasonableness; it is about what is fair and what is reasonable; it is about employers and employees working together in a reasonable manner.

This is an ideologically driven bill with no basis and no substance. It is just covering up this government's bereft third-term agenda. We need help for small business in areas of tax reform, GST relief and support particularly for venture-raising capital. That is what small businesses in my electorate are calling for—not for unreasonable, unfair dismissal laws.