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Monday, 14 August 2000
Page: 16261


Senator COONEY (5:37 PM) —In this debate on the Workplace Relations Amendment (Unfair Dismissals) Bill 1998, I continue the theme with which Senator Sherry finished. He was talking about, in effect, the rule of law and whether small business should be exempted from it. It leads me to ask why we seek to exempt small business only in respect of unfair dismissal. To make things easier for small business, why should we not exempt it from the traffic laws and from the parking laws? If small business people park their car outside their shop and get a parking ticket, why should they pay that parking fine? On the logic of this legislation, they ought to be excused, because it will impact on the business to have to pay that fine. If they do not pay their tax—


Senator Sherry —GST.


Senator COONEY —GST—why should they be punished? If you did charge them with not paying the GST, they might have to go to court, and there would be all these court costs. Why is it that, as legislators, we impose all sorts of obligations on small business—fine them for not paying their taxes, for parking their cars the wrong way—


Senator Sherry —Safety laws.


Senator COONEY —Breaking safety laws, breaking health laws? Why do we insist on fining them for that, punishing them for that, but not for this breach of the law that is being dealt with under the Workplace Relations Act? What is it about the Workplace Relations Act that imposes such a heavy penalty on small business that it leads to them being, in this legislation, excluded from the effects of the Workplace Relations Act? What is it about the Workplace Relations Act that does that when at the same time small businesses have to obey the Trade Practices Act, the Criminal Law Act, safety regulations, the street acts and so on? It is very strange that the government should seek to exclude the Workplace Relations Act from this impacting on small business but not other legislation. If we are going to have a law, it should apply to everyone. If a dismissal is unfair, it is unfair whether it is carried out by big business or small business. That is the proposition that has been put by many speakers before me.

One thing that has concerned me a bit about some of the earlier speeches is the fact that lawyers have been blamed for the heavy impact of this legislation upon small business, that somehow lawyers create a tidal wave of litigation. As you well know, Mr Acting Deputy President McKiernan, that is not right. I would have to confess, I suppose, to an interest here. The firm of my wife, Lillian, does a lot of these wrongful dismissal claims, and does them very well. My son Jerome, who is in that firm, does them too. He was speaking to me the other day and said, `There was one that came in and I advised the person not to go on with it because it was not a case that had sufficient merit to go on to court.'


Senator Carr —What about your other son?


Senator COONEY —The industrial officer does not do these, Mr Acting Deputy President. In any event, I declare my interest but in doing so I use my family as an illustration of those who make what many people would term a humble living out of pursuing these claims. The cases are not money-spinners—to use that phrase—in a big way; there are other areas of litigation that bring bigger fees than does this one. The lawyers, far from being condemned, ought to be praised, for two reasons: first, they put people's claims forward; and, secondly, they filter out those that do not have sufficient merit to go on and then pursue the ones that do have merit.

A person who has been wrongfully dismissed is a person who is in a terrible position. It is not simply that he or she has lost an income, which would be bad enough. In many cases, he or she has lost a sense of worth. A person who has been dismissed, whether wrongfully or otherwise, is not going to be too happy about it, and they will feel a terrible burden on their sense of dignity. If that is done unfairly, that is a bad thing. To return to my earlier theme, it might be a bad thing to leave your car parked outside your shop, for which you will get a $100 ticket, and it might be a bad thing not to pay the tax you should, but it is worse to unfairly dismiss someone who should not be dismissed.

We have been talking here about the position of small business, and I understand the position of small business—small business is up against it oftentimes. Small business has many balls to keep in the air: it has to pay the rent, it has to pay wages, it has to obey all the laws, and now it has to collect the GST. For some people it is an extra burden to be fair to your employees; to other people it comes naturally to them to be fair. Nevertheless, on the other side is a person who depends on a particular wage for their livelihood and who depends on their job for their sense of importance in the community. It is quite disastrous for some people when they are dismissed. I would certainly hesitate before I would take a step like that, and I hope other people would as well. For us to pass legislation that would allow that sort of thing to be done without any regard to the situation would be absolutely terrible.

This legislation effectively says, `Yes, you have a case for unfair dismissal. It may well be that you have been dismissed wrongly, unlawfully or unfairly; nevertheless, we are not going to give you any remedy, because we are concerned about small business.' It is proper to be concerned about small business, but the concern for small business is manifest in the oppression of the rights of employees rather than that concern being shown by having a better regime—a better way for them to pay their GST, a better way for them to obey the laws about health or whatever they are doing in their business.

There is no doubt that myriad things are placed on small business by the three tiers of government, whether it be local government, state government or federal government. A lot of people go out of small business because they cannot cope. That is happening now; there is no doubt about that. But why should we as legislators try to relieve these more amorphous pressures by sacrificing somebody else's life? Why should we say, `Even though there are all these pressures upon you, the one pressure we are going to relieve you of is the obligation to be fair to the person whom you work with?' And, being a small business, that is usually the situation—you work with them. In other words, we are saying, `You can treat this person who is before you as you will. Get rid of all your frustrations on this person. Dismiss them when you will—the law will do nothing about it, and parliament will do nothing about it. Parliament will do a lot about other things if you get out of line, but not about this.' It just seems a very strange approach.

It is interesting that the government is willing to sacrifice people's rights. I do not want to stray too far from this bill, but look at the way we are treating refugees from Iraq and Afghanistan. We say to them that they have broken the law in some way not specified, because they are refugees. These people are refugees, but we deny them the benefits that we might give others who come here legally, which means, `Come here according to our invitation. Even though your people are fleeing from Saddam Hussein—whom we do not like because we have all these sanctions on him—we are going to treat you very meanly because we want to exhibit our displeasure.' So we sacrifice refugees and, in this case, we sacrifice employees. Workers and refugees are the sorts of people we pick on.

I would not be terribly proud to be a member of a party that took those people on, that sacrificed, for a particular policy, workers and refugees and that might well be sacrificing—and you would know about this, Mr Acting Deputy President McKiernan, because you have been heading very well a committee that has been looking into this—people who are called stolen children. With respect to people who, whether lawfully or unlawfully, have been put in dreadful situations and might need some sort of help, we have said we are not going to help them either. When we start looking at our record on employees, refugees and stolen children we see that it is not too good. I see in the chamber Senator Carr, who has been doing great work amongst the educational institutions of this country.


Senator McGauran —His faction didn't appreciate it.


Senator COONEY —Instead of making that statement, Senator McGauran, you should be talking about how you greatly appreciate—and I know you do—the work that Senator Carr has done. There were real problems with our educational institutions in terms of students who came from overseas to very suspect educational institutions. If anybody made any noise about that, what did we do? We did not look at the educational institutions; we looked at the students and sent them back. That is another group that we tended to sacrifice in a fairly bullying fashion. So that is a fourth group—the students for whom Senator Carr is trying to get some justice, as well as the stolen children, the refugees and the workers employed in small businesses. When you look at the sorts of people we are knocking about, the people with whom we like to be tough, it is pretty amazing. We are not very tough with people who own big media outlets—they are not the sorts of people we like to take on. We are not very tough with big companies or people in the community who are powerful, but we are pretty tough with people who really cannot hit back, and that worries me a bit. I know we should not worry too much about the poorer side of society, but every now and then our sympathy creeps through and we tend to say something about it. I think this legislation deals with people who fill that category. The effect of this legislation is that, if an employer employs 15 or fewer employees, those 15 or fewer people do not have any rights as employees in terms of the length of their employment or their future as employees.

I think this is bad legislation—not only in its own terms but also as part of a pattern where legislation in this chamber and conduct by government are such that the vulnerable and the poor tend to be punished, whereas the more powerful and the richer get a bit of a go. I would like that situation to be made different so that people such as those who are unfairly dismissed—no matter by whom—should get a fair go. You can have a system of law and you can expect that lawyers will be good, particularly the lawyers who act in these sorts of areas. I think it has been my own side up until now that has said some harsh things about the legal profession. Sure, there are many harsh things to be said about the legal profession—some of them—but the legal profession, as I have witnessed in my own household, do some great work in this area and elsewhere.