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Monday, 14 August 2000
Page: 16180

Senator HUTCHINS (12:58 PM) —I note that the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 has been here on a few occasions and that it has been rejected—and Senator Murray has just assured us that it will be rejected again. My experience in dealing with unfair dismissals goes back a fair way in history. As an official of the Transport Workers Union in the eighties, before this legislation was changed, I remember that there was the opportunity to lodge unfair dismissal applications before the Arbitration Commission. If the commission was able to set a date to hear the case and you were successful in winning that case and you had an order placed on the employer to reinstate that man or woman, the employer did not have to take that decision into account at all. You had to go through another step—the Federal Court—to make an application for the commission's ruling to be sustained. I do not think any fair or reasonable person could argue that that process allowed for the fairness and balance in the system that we have now had available to us for some years. That was simply unfair and unjust because many honourable men and women, for a variety of reasons, lost their jobs. When they went before the commission to have themselves reinstated because they felt they had been unfairly and unjustly dismissed, the process of justice was so delayed and so prolonged that often the opportunity for those people to be reinstated in their previous jobs was no longer there.

In my years as a union official I saw many occasions when, because the employer and employee had fallen out over some silly thing, some action would be taken by the employer and he or she would dismiss that employee. We would then go to the commission and, after a lot of discussion, we would generally have employees put back on through conciliation. Often in those cases the employees stayed with the company, and from my experience in those areas they stayed until they retired. It is just that there was a bit of a breakdown in the relationship and, fortunately, we had an opportunity through that system to be able to at least have conciliation and put people back into the jobs they held at the time.

As has been mentioned on a few occasions, this legislation is very unfair in that it sets a probation period of six months for people, which I think is far too long. Secondly, it excludes any businesses that have fewer than 15 employees. Once again, I think that is unfair. As you may be aware, Madam Acting Deputy President, larger workplaces are generally unionised and generally have a procedure for resolution of grievances. They have these things in the medium and larger sized workplaces. Often in smaller workplaces that is not the case, because there is a lot more hands-on work required by small business operators than in the larger firms where they have established grievance procedures and people who professionally handle them. So I think that is quite unfair and, as set out by Senator Murray, it has not led to a great division or winding back of employment by the small business sector. I am reminded of a speech made by Sandra Nori, who is the Minister for Small Business in New South Wales. At a gathering of the Parramatta Chamber of Commerce, of which I am a member, Ms Nori said that new jobs were created more by economic growth than by anything related to the unfair dismissal laws. In fact in the Industrial Relations Commission of New South Wales the number of unfair dismissal applications fell by 14 per cent between 1997 and 1998, and they fell a further 19 per cent between 1998 and 1999. In New South Wales unfair dismissal claims affect about 0.2 per cent of the New South Wales work force whilst 94 percent of unfair dismissal claims are conciliated or settled, and reinstatement or re-engagement occurs in about 0.7 per cent of cases. So there are strong arguments against this discriminatory law that is being introduced by the government because the number of unfair dismissals is not causing small businesses the heartache it has been made out to be. As Ms Nori said, the jobs will be created by economic growth, not by any sort of fiddling with unfair dismissal laws.

So we have had some interesting aspects of this legislation highlighted and, as I said, some unfair and unjust aspects of it have been highlighted as well. In looking for where one might see a different aspect of this legislation I found that one of the original pieces of labour legislation introduced by the House of Commons was in fact a bill called the Statute of Laborers, introduced in 1351. This bill was introduced during a labour shortage that occurred in England because of the Black Death. Unfortunately for the lords and ladies of England at the time, because there was a shortage of labour, the labourers, the carters, the dairy maids and all the rest of the agricultural classes decided to use this opportunity to flex their muscle and they started to demand extra wages and conditions. This was so upsetting to the lords and ladies of the time that they petitioned Edward III to enact this legislation, which in many ways was very harsh in the way that it dealt with people. For example, if you did not stay on the land and work for the lord you could be put in the stocks or you could be arrested and sometimes have to serve three months, six months or 12 months, depending upon how rowdy you must have been. In fact it got to a stage in 1389, when they used these laws against the working men and women of England, where there were something like 800 prosecutions in the County of Essex alone because the people were commanding extra money and conditions so that they could live in some relative harmony. There is some other interesting information about that time in that the people who were supporting the labourers—in 1356 one of them was the Vicar of Albury in Hertfordshire and another was a local hermit—were preaching that there should be no laws that would restrict the people of England from getting their proper rates of pay and conditions.

I want to just finish with one group of people who, as usual, always seem to benefit when something like this happens. Looking at it, the lords and ladies were not making much out of it; they had to enact this legislation in 1351. The agricultural classes were not making much out of it; they were being oppressed and taken to the cleaners by the lords and ladies. But somehow or other there was one group that did manage to get through and improve its position, and that was the lawyers. Once again, the lawyers seemed to be able to make a motser out of this. An article on the Black Death said:

By the same token, the plague provided the incentive and opportunity for the lawyers to establish a new modus vivendi with the political establishment. The thinning of the ranks of the lawyers gave the leaders of the profession the opportunity to consolidate, to increase the distance between the men who strutted at the bar and the rank-and-file of legal practitioners, and to dominate access to the upper levels of the profession through the Inns of Court. At the same time they developed, or acquiesced in the development of a career structure which led in most cases to appointment to the bench.

So, as we have said on numerous occasions in here, no matter where you go or where you look in history there is always going to be a lawyer win.