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Monday, 11 August 2003
Page: 12955


Senator GEORGE CAMPBELL (1:46 PM) —The Workplace Relations Amendment (Termination of Employment) Bill 2002 is part of a package of bills put forward by this government that again seeks to tip the scales in industrial relations even further in favour of the employer. It is apparent whom this government represents and it is not the working people of Australia. At least the former workplace relations minister, Peter Reith, had the honesty to state that he was there simply to serve the interests of employers and no-one else. This bill, in its attempt to force unfair dismissal coverage from the states to the federal system, is fundamentally misconceived. There are four key problems with the bill. One, there has been a complete lack of consultation with the states. Two, there has been insufficient attention given to costing and administrative arrangements. Three, the bill will result in a reduction in rates for workers with unfair dismissal claims. Four, the absence of a cooperative approach means a substantial sector of the work force will remain beyond the reach of federal law. These flaws make this bill untenable, and the reality is that this bill will not result in one new job.

Fundamentally, the federal government has failed to justify any problems with the operation or application of the current state unfair dismissal system. It must be said from the outset that I am sickened by the coalition's hypocritical stance on this issue. For years, a unitary system that upholds employee rights has been the policy province of Labor. The benefits of a unitary system have been ignored by conservatives, who have been obsessed with defending state rights. Now that all state governments are Labor, we find the coalition more interested in industrial relations reform than in state rights. If the government were making a constructive move towards a unified and simplified industrial relations system, Labor might well be interested. But this bill is nothing more than an attempt to reduce the rights and protections currently enjoyed by many workers under the state industrial relations system.

A speech by the President of the Australian Industrial Relations Commission, Justice Giudice, was cited in the explanatory memorandum in support of a unified system for unfair dismissal claims. However, this speech emphasised the need for consultation and cooperation to be embedded in any attempt to pursue a national system of unfair dismissals. Justice Giudice went on to recount how a uniform companies law came about—by consultation and cooperation, not by legislative fiat. There has been minimal consultation on this bill. In fact, the Workplace Relations Ministers Council met two days before Minister Abbott outlined the essence of this bill to the media and the minister gave no indication to his state counterparts of this bill's existence. I find this particularly outrageous. It simply confirms our claim that this is a political bill rather than a serious attempt to improve the industrial relations system. Interestingly, Minister Abbott's proposal runs contrary to the views of the New South Wales opposition spokesman on industrial relations, Mike Gallacher. He has twice this year publicly expressed support for New South Wales retaining its own industrial relations system.

Very little work has gone into analysing the financial impact of this bill. There will be a considerable increase in work for the commission, leading to greater demands being placed on registry staff and resources and the need for additional courtrooms, facilities, court reporting services and so on. The government has largely ignored the impact of the proposed changes. Furthermore, the Employment, Workplace Relations and Education Legislation Committee produced a report on the bill. The Labor senators' report concluded:

... the bill will actually increase the industrial relations costs borne by business because many who choose to use the state system will now be forced to operate in two systems, a unitary system will not result, and workers will be discouraged from working for small businesses because it offers them less security and fewer rights.

This bill: one, reduces the amount of compensation that can be awarded to an unfairly dismissed employee of a small business; two, extends from three months to six months the qualifying period for employment before an employee of small business can bring an unfair dismissal; three, narrows the scope for an employee made redundant by her or his employer to mount an unfair dismissal action; and, four, reduces the amount of back pay available where reinstatement is ordered.

Just briefly, on the changes to small business employees, this bill suffers from the same problem plaguing the countless workplace relations bills put forward by this government, and that is that there has never been a strong case made for the proposition that employees in the small business sector should possess fewer rights and legal safeguards than people who work in other employment sectors. The references committee conducted a serious inquiry into small business employment and found that the preoccupations of small business differed very little from those of large and medium business—having to do with business cycles, taxation, regulations and general economic conditions. Small business employs to the extent that business levels and business growth strategies determine, not the unfair dismissal laws. Any connection between the fear of unfair dismissal claims and the rate of overall small business employment is extremely tenuous. The Labor Party believe in equal rights; therefore, we believe that, for an employee who is dismissed, the size of the business should not be the determining factor.

A number of submissions made scathing comment on the methodology of the Harding survey, which was the basis for the government's claims about unfair dismissal laws constraining employment. These submissions found that the conclusions of the survey were badly flawed. Professor Andrew Stuart found that the figure of 77,482 job losses due to these laws was an estimate based on a series of estimates, and a curious exercise providing a weak foundation for government pronouncements on the benefit of the legislation. The onus of proof must always remain with those who desire to strip employees of legal rights to fairness, and this government has failed to satisfy this onus.

The Democrat senators' report agrees with the view that no hard evidence has been put forward. In fact, Senator Murray stated:

The experiment under Queensland State laws, when their then Coalition government introduced an exemption for small business, had no evident effect on job creation.

Even if these laws represented an increase in labour costs, the same could be said about superannuation and occupational health and safety laws. Are we to conclude that these are next on the government's hit list? The references committee's inquiry into small business employment found that:

Consistent with survey rankings of small business concerns, unfair dismissal did not arise as a major issue during the inquiry ...

The changes to redundancy obligations are very worrying. Many employers use redundancies to get rid of workers they consider troublesome. Employers must use an agreed and transparent process, otherwise unfair dismissal claims are almost inevitable. There is no guarantee that this bill will finish debate on termination of employment. The federal scheme does not purport to provide a national scheme in which all employees have access. If this bill passes, state termination jurisdictions will need to remain to provide for employees of non-incorporated businesses, and the state appears to have a role, potentially, for 1.5 million or so employees, including state public servants. This bill will simply create another tier of employees with yet another level of rights and protection. The government has asserted, without explanation or justification, that the proposed Commonwealth legislation will be better balanced than current state laws that, according to the explanatory memorandum, contain inequalities which, however, are not identified.

Furthermore, this bill—overriding state legislation—has been produced without consultation with the states. Hence this bill shows all the signs of failure to deal cooperatively with the states. The bill seeks to override state unfair dismissal laws in favour of a federal regime that is inferior in both design and operation. The proposed amendments would not in fact contribute to the goal of simplifying the coverage of federal and state labour laws. As the Democrat senators' report stated:

... relying on the Corporation's power alone will still leave large chunks of employees working for non incorporated business, many of these small business, with no protection from State or Federal laws.

In conclusion, this bill is both a limited and blunt instrument of legislation. It leaves a small but significant group of workers beyond its ambit and it creates legal complications in cases where current state legislation covers regulatory matters affecting unfair dismissal. Labor are not opposed to a more coherent system per se. What we are opposed to, however, is this government's arrogant and unilateral approach and its determination to attack working people's rights and their protection.

Debate interrupted.