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Monday, 26 March 2001
Page: 22973


Senator HUTCHINS (5:40 PM) —It is certainly my pleasure to follow a fellow senator whom I have listened to in the short period I have been here. I find that each contribution he has made is one that he makes on principle—and I sometimes wonder whether he is leading his party rather than simply advocating their position.

It is a very interesting situation we find ourselves in. I have spoken on the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 before. It was in August last year, and I recall that at that stage I was going back to 1351 and the Statute of Labourers—as far back as we could look to refer to legislation that was governing, in one form or another, the employment rights of people who worked for a living. Of course, you may not recall 1351, Mr Acting Deputy President Lightfoot—there are, I am sure, people in your party who feel that you may!—but there was very little protection for employees in that period. It drew the attention of the House of Commons to take certain action to remedy some minimum protection and rights.

As I say, I went back to my original speech and looked at it and then at the Bills Digest. As Senator Murray and, no doubt, Senator Collins have mentioned, this is one of those areas which is supposedly a trigger for a double dissolution. I see the representative of the minister at the table here tonight, and I know her to be personally brave; but I cannot see that any government, after what we saw on the weekend, will be brave enough to use this as a trigger for a double dissolution. Like a number of my colleagues and like yourself, no doubt, I have experienced double dissolutions in my political and party career, and very seldom does the issue that brought about the double dissolution become the issue in the general election. What will become an issue in the general election is the way that the government has treated small business; the way it has treated employment in this country; the way it has treated pensioners and self-funded retirees; the way it has treated the mining industry; the way it has treated dairy farmers—the way the government has treated all those people, particularly a lot of those people whom it rightly regards, and has rightly regarded for generations, as stalwart supporters of the conservative cause.

If this bill is defeated this evening, I imagine that members of the coalition, when they have their party meetings tomorrow, will have one of those magic weapons with which to go to a double dissolution, putting us on notice with the Australian people. I suppose that I dare you to do it. I am sure that we would love you to go to the Australian people now. You saw the results in Ryan on the weekend, Mr Acting Deputy President. You would have seen how ready, willing and eager the Australian electorate were to get at the party in government and give it the comeuppance it deserves. It is with that in mind tonight that we have an opportunity to debate this bill again and see where it goes.

Just to reiterate, I will not go back to that Statute of Labourers in 1351 or 1353 but I will go back to a period when—and I make no bones about my background—I was a full-time official of the Transport Workers Union for 18 years. I started as an official, then became the state secretary in New South Wales and ended up as the federal president. I remember, as I may have reiterated the last time I spoke, that my first introduction to appearing before the federal and state commissions in New South Wales was the advice given to me that, `If you go into the federal commission, you have to stand up; in the state commission, you can sit down.' That was the level of training we were given; and I thought it was good training because I learned to speak on my feet on many occasions.

One of the first unfair dismissal cases that I took was in the New South Wales commission. I explained, when last I spoke on this, just how difficult it was in those days for people who worked in the federal system to get access to justice and fairness in that system. As I said, my first case was in the state commission. One of the areas I will refer to—and I am not sure whether Senator Collins mentioned this—is a decision by Mr Justice Sheehy in the New South Wales commission, called the Loty and Holloway case. In essence, I believe that case established the term that runs through all unfair dismissal laws: `a fair go all round'. It might surprise you, Mr Acting Deputy President, that that unfair dismissal action was taken by two employees of an organisation that probably had over 15 full-time employees. Those two employees had worked there for longer than six months. The organisation—and I am sure my colleagues in the Australian Workers Union will not mind me saying this—that was being taken to the Industrial Commission on unfair dismissal was the Australian Workers Union. Two employees of the union—one John Loty, who is now a barrister; and Necia Holloway, whose whereabouts I am not sure of at the moment—were dismissed by one of the factions that got control of the AWU, as tends to happen on occasions, and their employment was terminated.

The chap who became a federal member of parliament for Phillip and became a federal minister, Joe Riordan, who was federal secretary of the clerks union at the time, took the matter before Mr Justice Sheehy of the New South Wales commission. It was there—and maybe Senator Cooney, who is a barrister, can correct me if I am wrong—that the issue of `a fair go all round' was established. That has been, in the New South Wales jurisdiction, a thumbnail sketch of how it has been determined whether someone has been unfairly or unjustly dismissed—and that is as it should be. It has not been based on whether they have been six months as a permanent employee or on whether they have been working for a company or an organisation with over 15 full-time employees, but simply on the fact that their rights and privileges as citizens of this country are able to be upheld if they may have been unfairly dismissed. For your information, a number of significant grounds were established in the Loty and Holloway case, where Mr Loty was dismissed—and it was held that he was rightly dismissed—and Ms Holloway was reinstated. As I said, Mr Loty went on to become a barrister. So this was established in the 1950s by Joe Riordan, as the then federal secretary of the clerks union, and it has been a test that has been established for employees in the New South Wales jurisdiction.

As I said earlier, I remember how difficult it was for men and women who worked in the federal jurisdiction to have access to that fairness and justice. They were being dismissed unfairly and unjustly, and they were entitled to be reinstated. I always felt that that should be the cornerstone of any legislation, and not necessarily compensation. I always felt that, if someone was prepared to go to the commission and argue the case that they indeed wanted to be reinstated with that company, that company had probably erred. In all my years of being involved in the TWU, there were a number of occasions where people were, I believe, correctly dismissed, and their cases were not pursued on the part of the TWU. But it was at that time that we had the sole rights to go before the commission and make those applications.

After the Greiner government got into power in New South Wales in 1988, they made opportunities for people to go jurisdiction-hopping and to elect whether they wanted to be reinstated or compensated. That is what caused the queues in the New South Wales commission and, undoubtedly, that is what caused the queues in the federal commission as well—because people had the opportunity to say, `I don't want my job back; I just want extra money.' That issue has come and gone, and that is not what we are debating today. We are debating today the fact that this legislation would bar people from having access to the unfair dismissal laws unless their employer has more than 15 staff and unless they have had six months continuous employment.

As has been mentioned by Senator Murray and by Senator Collins, the most interesting thing about this legislation is that the government is trying to establish some nexus between the fact that, if there is a freeing up of the unfair dismissal laws, that will create 50,000 extra jobs. Apparently this claim comes from Mr Paul Bastian, a spokesman for the Council of Small Business Organisations of Australia, without any sort of data whatsoever—only that he had been told, I gather, by a number of small businesses that they are being held back from creating extra employment because they fear the situation with unfair dismissals. Translating it into my own state, it would mean that, of those 50,000 extra jobs that Mr Bastian claimed there would be in 1998, in New South Wales we would get 16,000. Once again, statistically, there were only 304 unfair dismissal claims made in New South Wales in 1998; so I cannot see how you could establish that the figure of 304 unfair dismissal claims has dissuaded employers from creating 16,000 jobs.

In fact, a survey done recently of Victorian small businesses found that the most important thing affecting them was the current business activity statement. I am sure you, Mr Acting Deputy President Lightfoot, from your travels throughout your great state of Western Australia, would know how angry small business is about this con by the government over these new tax laws. Small businesses are more interested in that and what the government is going to do about it than they are in unfair dismissal laws. These Victorian small employers were asked where, of 11 issues, they ranked the unfair dismissal laws. Guess where they came? They came 11 out of 11. Eighty-three per cent of them were most concerned about the business activity statement and the fact that it is taking up too much of their time and energy, rather than about the unfair dismissal laws.

The respected firm Dun and Bradstreet in their latest business expectation survey have said:

More than 40 per cent of business owners have told us they are struggling with available cash flow in their bid to make quarterly taxation payments. These businesses are now finding it difficult to pay their creditors on time, which creates a domino effect for all businesses along the supply chain.

That is what is worrying small business, not unfair dismissal laws. I am pretty sure they would be very angry to think that this government is now looking for some sort of parliamentary means to go into a double dissolution, pretty angry that this is some sort of sleight of hand by the government to engineer a potential crisis, and pretty angry that the government should be wasting its time on making sure that these laws to impose the new restrictions and impediments on small business get through the Senate. They would be angry that we are wasting time on something that they did not even prioritise any higher than 11 out of 11—when the government should be presenting to the Senate remedies to make it easier for small businesses to operate.

I cannot see how any of this will impact on employment. I cannot see how this will provide a remedy for any of the complaints that small business are making. Most small businesses are decent, honourable employers who value full-time staff. It is a fact of life that, if you have full-time staff that are content, well-paid and secure in their employment, they will be far more productive than anybody who is casualised, feeling threatened, or does not work in a safe work environment. That is a clear given; I do not think it could be questioned by anybody. These laws are unnecessary. There are remedies in the workplace now. This is unfair to big business. It is uncalled for by small business, and we need to speedily reject it to see whether or not the government is brave enough to go ahead and call a double dissolution.