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Monday, 26 March 2001
Page: 22970


Senator MURRAY (5:22 PM) —In reference to the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No. 2] I would refer readers and listeners back to the Hansard record of previous debates on this matter in 1997, 1998 and 1999 and to my minority report of February 1999 to the Workplace Relations Amendment (Unfair Dismissals) Bill 1998, to which Senator Collins referred and which still provides the basis of the Democrats' opinion on this matter.

I have had a look at the minister's second reading speech to the bill, which is the same bill that was introduced into the House of Representatives on 12 November 1998, passed by them, but rejected by the Senate on 14 August 2000. The second reading speech of the government immediately moves to reject the idea that this is a double dissolution trigger. It says:

The government is not reintroducing this bill because it wants to have an election over it.

I happen to think that is right, that they would not have an election over this particular bill. However, it will have the effect of giving them a double dissolution election trigger, if that is what they want, and in that sense it is good political housekeeping. The claims within it, though, deserve to be addressed, and Senator Collins has addressed them quite fully. The claim that it would unlock small business access to some 50,000 new jobs is a spurious one; it is a claim that has been fundamentally refuted before and has again been refuted by Senator Collins. When the government accept round figures like that which do not move regardless of the circumstances of the economy or of what else is going on in state jurisdictions, it indicates a lack of substance to the claim.

It is, of course, an argument that adjustments to some of the deficiencies within the law could have some beneficial effects in terms of small business attitudes about unfair dismissals. That is an argument the Democrats are prepared to acknowledge. In that respect, I draw the Senate's attention to the fact that on page 3 of today's Notice Paper, at item 16, there is the Workplace Relations Amendment (Termination of Employment) Bill 2000. It is to be regretted that these two bills were not introduced together, because the Australian Democrats have clearly—in the minority report to which I referred—accepted that there are process, time and cost issues which need to be further resolved. Whilst we would not in any event accept the whole of that bill, nevertheless we are prepared to consider amendments to that bill and to suggest to the government ways in which process and cost issues should be addressed. That is more important than getting rid of a fundamental right: the right of people who are in a disadvantaged position to have their unfair dismissal claim assessed by an independent umpire, which is the Australian Industrial Relations Commission.

The government argue that their unfair dismissals bill represents or has been the subject of an almost unprecedented degree of political obstructionism. Well, yes, it has; and I am pleased to see the Senate obstructing and rejecting what is regarded by those not on the government benches as a fundamentally unjust proposition—that is, that a fundamental right should be withdrawn. However, one swallow does not make a summer, or an exception does not prove a rule. One bill being obstructed does not indicate Senate obstructionism. I would remind the chamber of what we know but is often not properly represented out there in voter land: that the Senate passes 98 to 99 per cent of all bills before it, some of those with amendment, but there are very few bills subject to the kind of obstructionism that we have given in the past to this bill and that we will give again to this bill.

The government claim that there is a jobs link to this bill. However, the grounds on which they make that claim are extremely questionable. I am not going to go into great detail on that again, having done so before. But one of the extraordinary things proposed by the bill is that it only applies to new employees. Not only do the government want to distinguish between big business and small business with regard to access to federal unfair dismissal cases, but they actually want to create a different class within small business: new employees will be on a set of conditions different to those for old employees. If anything is a recipe for confusion and trouble, I would suggest that that would be.

The issue should also be addressed by reference to numbers. I intend tabling only one page of figures—that is, the summary of federal unfair dismissal cases throughout the country—but I would like briefly to encapsulate what has happened with federal unfair dismissal cases in each state. I remind the Senate that the percentage of small business claims that are part of total federal unfair dismissal claims is about one-third and that about two-thirds of all unfair dismissal claims are state, not federal, anyway. If a problem exists at all, it may well be considered to be state, not federal. In the commentary from business groups who advocate and support this kind of bill, I have seldom—and I say seldom because I may have forgotten—if ever heard them distinguish between federal and state jurisdictions, which seems to me quite extraordinary.

Let us begin with federal unfair dismissal cases in Western Australia, my state. These figures include big business and small business. In 1996, the total number was 1,849. In the year 2000, it was 401. One-third of that is a little over 100; hardly a major issue. Victoria has the largest number of federal unfair dismissal cases. Bear in mind that 1996 was before the enactment of the new act, whereas 2000 was under the new federal act. In Victoria, the figure was 6,169 in 1996; in the year 2000, it was 4,606—a diminution of about 1,500. In Tasmania in 1996, the figure was 369; in the year 2000, it was 127. In South Australia in 1996, the figure was 644; in the year 2000, it was 199. In Queensland in 1996, the figure was 562; in the year 2000, it was 416. In the Northern Territory in 1996, the figure was 407; in the year 2000, it was 307. In New South Wales in 1996, the figure was 4,547; in the year 2000, it was 1,388—a diminution of over 3,000 in those years. In the ACT, the figure was 536 in 1996 and 236 in the year 2000. You can see a major reduction since the 1996 act; those provisions have been extremely effective in limiting the total number of unfair dismissal cases. Therefore, for small business there has been a massive reduction of federal unfair dismissal cases. To go to the figures which I propose to table—the summary of federal unfair dismissal cases across Australia—in the year 1996 there were 15,383 and in the year 2000 there were 7,680, which is a halving.

What is quite interesting is that the number of unfair dismissal cases has dropped whilst the employment figures have risen. I have not done the direct analysis but that, I would think, would put the lie to the idea that when employment growth is under way it either will be paralleled by exactly the same growth in unfair dismissal cases or be a major restriction on the growth of employment. Bear in mind that I represent a party which recognises that further process and cost issues have to be addressed; not, I repeat, in the form that the government is proposing, but there are some issues that could be addressed. We are in the situation in relation to federal unfair dismissal cases where about one-third of 7,680 cases affect small business; a little over 2,000 across the entire country. I have not got the latest industrial registrar figures on these matters before me, but my memory is that large numbers of those end up being dismissed and large numbers are found to be in favour of small businesses anyway: they do not automatically go to all employees and very few reinstatements occur. As I recall, the number of reinstatements is fewer than 100 over the entire country, but I have not got the up-to-date figures in front of me so I will leave that as a memory issue.

You have, I think, four real issues to deal with. Firstly, is the problem in a federal sense out of control, escalating, revealing a dangerous and difficult situation? The answer is that on the figures it is not. The second issue is however that we have had clear evidence from both unions and employer organisations that further reform to the law is necessary. So, on the question of whether the law needs to be amended in some cases, from each of those sides there is a view on that. The third issue is: is it a major impediment to jobs? If it were, it would a consequence of state jurisdiction, because that is where most unfair dismissal cases for small business reside. But there is nothing in the research or the data produced to date which provides that direct link which Mr Bastian originally forecast and, as I say, no objective observer, never mind subjective ones, can see any link at all between a figure of 50,000 and removing this provision in the act.

The fourth issue, of course, is the political issue. This bill does have the effect of giving the government a double dissolution trigger. I am delighted to be able to give it to you on the basis of a civil rights matter—absolutely delighted. As I said to you, it is good political housekeeping, in my view, for you to do it, but I do not give it any great note. I will take you seriously as a government, however, when you do introduce your Workplace Relations Amendment (Termination of Employment) Bill 2000, because that is an attempt to adjust the law without attacking the principle that every employee should have unfair dismissal provisions available to them when they are up against dismissals which need to be challenged through the Industrial Relations Commission.

I do not propose to go much further than this. The Democrats still think that this bill is harsh, unnecessary, unjustified. We will vote the bill down. We will keep voting it down. We think it offends a fundamental principle. We think it seeks to differentiate between classes of Australians, even within small business, and we think its motivation is wrong. I have always been surprised that small business, who themselves demand protection from big business in so many areas, cannot equate their feelings about the abuse of power by large organisations with the sense amongst employees that they too deserve some protection. I think the parallel is fairly evident. So with those remarks, I would formally ask if the Senate would grant leave for me to table the sheet I circulated earlier.

Leave granted.