Senator BUCKLAND (12:15 PM) —The aim of the Workplace Relations Amendment (Fair Dismissal) Bill 2002 is to exempt businesses with fewer than 20 employees from the unfair dismissals provision of the Workplace Relations Act 1996. In other words, it is the intention to take away the right of a fair go, which basically means to take away the right to speak in your own defence before being given the sack or before a tribunal and, even worse, the right to challenge the decision after you have been sacked. The bill is draconian. The bill has no thought for the industrial needs of Australia today.

It is interesting to note—and I make reference to the contribution of Senator Forshaw and the statistics he put before the Senate—that less than 0.3 per cent of small business in Australia who operate under the provisions of the Workplace Relations Act experience federal unfair dismissal claims. According to the 2000-01 annual report of the Australian Industrial Relations Commission, of the 7,809 termination of employment matters finalised during that financial year, 6,096, or 78 per cent, were finalised prior to or at the informal conciliation stage. A further 1,422, or 18 per cent, were settled prior to the arbitration process being completed, and 291, or four per cent, were the subject of substantive arbitration.

This is not the first proposal to remove small business from federal unfair dismissal jurisdiction. That is fine if it is what the government wants, but it simply means that those of us with a sense of fairness will continue to rise and speak against it; we will continue to vote it down. There is another point to make about the matter coming before the Senate—that is, there is a continual demonstration of how out of touch with small business is the Howard-Costello government. There is no public debate about the effects of unfair dismissal laws and the effects they could have on small business, apart from the occasional limp comment from government ministers. I talk a lot to small business operators around the country, particularly in South Australia.

Senator Boswell —You can talk to me because I was one of them.

Senator BUCKLAND —Let me say that those small operators and the business groups who represent them are not raising the questions of unfair dismissal. It simply does not come up as a major issue for them.

Senator Abetz —You must go to different small businesses.

Senator BUCKLAND —It is not on their agenda—despite the unintelligent and unhelpful remarks from the other side. They need to get out there and talk to the business community. The effects of this bill endanger the very basic rights of employees because of the size of the company they work for. It is discriminatory. They are discriminated against simply because their employment is in an organisation that has fewer than 20 employees. So we have two classes of worker in Australia if this flawed bill were to pass. The bill will prevent small business employees other than apprentices and trainees from applying under the Workplace Relations Act for a remedy against harsh, unjust or unreasonable termination of employment. That is where the flaw in this bill is: that it does not provide easy access to challenge a decision that may be made in haste or is, in fact, a wrong decision.

The proposed bill will make changes to unfair dismissal laws—laws that are in place to protect workers from being sacked without good reason. Laws such as this are essential to make certain that the relationship between employers and employees are fair. That is what is required: fairness. Nothing more. The system as it is now provides that degree of fairness and, with some modification, the act could be used by both parties with a reasonable sense of fairness.

Minister Abbott has claimed that the enactment of this bill would create 53,000 jobs. This assertion warrants no merit. It is flawed. There is absolutely no evidence that this type of legislation would create jobs. There is no evidence it would create one job, let alone the claimed 53,000 jobs. The whole thing is nothing more than a weak and feeble attempt by the government to appear as though they are interested in creating jobs, and they have not demonstrated that they are.

The Federal Court recently disparaged the notion that there was a relationship between employment growth and unfair dismissal laws. Senator Forshaw mentioned the Hamzy v. Tricon International Restaurants matter. I think it is important for us to quote part of what the Federal Court had to say:

The government has the words but it does not have the evidence to support its claims. The merits of having some form of small business exemption have been debated for five or six years, yet during this period the government has failed to come up with any evidence that the exclusion of small business employees is good economic policy. In fact, February's Yellow Pages business index states that the biggest concern raised by businesses of significant growth was finding new employees. It would appear that rather than being concerned about finding suitably trained employees, the government is concerned about finding an easy way to sack current employees. The reality is that under this legislation employees of small businesses would no longer feel secure in the knowledge that they could not be dismissed without being given a fair go in answering their employer's concerns. They would be isolated and discriminated against in comparison to workers in larger companies.

Any decline in employment security expresses itself in an employee's patterns of income, consumption, savings and investment. The simple truth is that, when making important economic decisions that affect themselves and their families, people look at how secure their jobs are. This is more of a concern when you look at the disabled and those who cannot, for mental or physical reasons, represent themselves or fight back and stand up for their rights. It becomes much harder to build trust and cooperation if employees know their employer can dismiss them without any mechanism to seek redress. Without trust and cooperation it becomes harder to manage changes in the business world—changes which might enhance productivity growth and the security of the business in the marketplace in which it acts.

The government's legislation aims to exclude only the remedies in the unfair dismissal provisions contained in the Workplace Relations Act. Consequently, small business would be exposed to more expensive and unpredictable common law contract claims. It appears that the government is quite happy for small businesses to take their chances with the common law, regardless of the costs involved, insofar as to say that the government is favourable in its attitude to common law remedies, particularly as a means of punishment for industrial action by workers who lack the resources to fund an action at common law. In 1986, Peter Costello addressed the HR Nicholls Society. He had this to say:

So right was he that in 2001 the decision of the House of Lords quoted in Johnson v. Unisys stated:

The government, in putting this bill before the Senate yet again, is doing nothing more than trying to find a way to placate some sections of the business community who would do anything at all to have no legal obligations to those that they employ—that they would employ at will. It is the type of thing that will send us back to the days when you lined up at the front gate hoping for work in the factory for a day and if you did not catch a token as it was thrown out you did not work.

This is a very draconian piece of legislation; it has no thought for employees whatsoever. It is one-sided. It does not recognise the needs of a modern industrial work environment and it does not recognise those things that have been done over the past 15 or so years to revolutionise industrial relations in Australia, under the current industrial laws. It does not recognise a need for uniformity between the states and the Commonwealth. It wants to go its own way.

I think it is important to note the many changes within industry that took place between the late 1980s and the mid-1990s, with restructuring of industry. A lot of pain was suffered by workers when their industries were restructured, with numbers being cut to better facilitate the needs of particular industries when new technology was introduced to benefit those industries and—it was believed at the time—their employees. For all that pain suffered by workers, this government is now trying to tell us that employers say they want greater control to hire and fire at will, with no recourse for workers to challenge that. They want a free rein to do as they please. Labor will not agree to that.

We will not agree to those parts of the legislation that take away the dignity of workers who are out there trying to earn money to survive in this world and to provide for their families. They will not be able to give an assurance to the banks from whom they get loans that they will have continued employment, because all the time they will have the threat of instant dismissal for no good reason. And it will be for no good reason; it will be on the whim of the employer.

Labor believe that there are three central principles to good industrial relations, and our approach would be to say that unfair dismissal laws are as much educative as they are regulatory. The development of industrial relations over the past two decades has been vital in promoting the concepts of a fair go and of a mutual obligation of good faith in the workplace. From the years of practice I had in that environment, I would say that a fair go and the concept of mutual obligation were things that were respected by all sides. We also say that unfair dismissal laws should be workable and accessible for employers and employees equally. Labor recognises that there are still problems of cost and procedure, and the parliament should be sitting down to address those issues. There are problems, and those problems should be addressed.

We see that unfair dismissal laws are designed to promote employment security. Changes to unfair dismissal laws should not erode employment security by stripping employees' rights away from them. We have to continually have an environment where the worker has a fair go and the right of reply, should the employer wish to act to terminate their employment. We cannot create a society where workers live in two separate classes—where your neighbour works in a large company and, therefore, has the protection of unfair dismissal laws but you happen to work in a small company and you do not have that same sort of protection. In these days, society cannot tolerate legislation which has such consequences.

The current system gives the opportunity for employees to challenge their employer. There can be no question that the majority of those matters that are taken before the Industrial Relations Commission are resolved at the stage of conciliation. Very few go through to be argued in the Industrial Relations Commission. Conciliation is a short process where you have a third party with a fresh view coming in to look at the merits of the case at hand. It is not costly; it does not require the engagement of a solicitor or barrister; it simply means you go down and put your case before the commission. This country has been blessed with some very good commissioners, and those commissioners always have the view that fairness must be paramount in what occurs.

Senator Forshaw —From both sides.

Senator BUCKLAND —As Senator Forshaw rightly says, those good commissioners have been from both sides. I have a number of friends among them. (Time expired)