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Monday, 11 August 2003
Page: 13034

Senator SANTORO (5:32 PM) —The principal object of workplace relations legislation is to make it easier for businesses to employ people. It sometimes seems in the national debate over workplace relations and the government's policy that the loud constituency that claims it is actually a measure that assists bad employers become worse employers has indeed taken charge of the debate. It bears repeating, apparently, that it is in no way in the interests of any employer to recruit and then to have to sack unsuitable workers. Neither is unfair dismissal law any longer naturally an area of big union dominance. Most Australian private sector employees do not belong to unions, and this is something the Labor Party, in particular, really needs to get to grips with.

In speaking to the Workplace Relations Amendment (Termination of Employment) Bill 2002 today, I want to concentrate on the really vital ground in this debate, and that really vital ground is small business. As a general rule, big business is capable of looking after its own interests in relations with its employees. We need laws to govern dismissal primarily to foreclose on what generally are very rare instances of unfairness in dismissals from large companies. The Labor Party might like to think differently—actually, we know that they think differently from everything that they say—but we would all benefit, and the country with us, if, in thinking differently, they also thought logically. I appreciate that this may come as something as a culture shock to those opposite, who seem to think that the Tolpuddle Martyrs were monstered only last week. But the logic of employment today in industries where work is either cyclical or seasonal is that short-term contract employment is a sensible option. Often this is provided by labour hire companies. In single workplaces with long-term employment conditions—and this is the basis of most employment in this country—it makes no sense either for employers to be unfair or for employees to take unfair advantage of their positions. As in most things, in a democratic and socially responsive culture such as ours, we are all in the same boat. Our collective interest lies in ensuring that those who row the boat do so in a coordinated manner, that those who steer the boat take the safest and speediest course to our shared destination, and that those who own the boat ensure that it goes to the destination they desire to sail to.

In Australia the bulk of the employment picture is made up of small businesses. The statistics are so often quoted that it hardly seems necessary to go through them here again tonight, and I will not. It is enough in this debate to say that small business is the real driver of local employment and that it is there that government policy on the workplace should concentrate.

Unemployment in Australia has been a persistent problem for a number of years. It is clear that there are a number of reasons for this, ranging from an awkward fit with emerging commercial and industrial opportunities and markets to that phenomenon of the soft Western world, the workless by choice. It is often useful to pause and think about how lucky we are as people. We live in an advanced economy under a system of government that the people actually control and which provides a welfare safety net that most of the world can only dream about between nightmares. In the workplace relations debate, in particular, I believe we need to recognise the beneficence that we award ourselves. That is not to say that this beneficence should not be removed or even reduced. It is just that on any objective analysis of Australia's workplace relations laws we do have good reasons to be proud.

The business community, and in particular in this instance the Australian Chamber of Commerce and Industry, have voiced some criticisms over what they see as insufficient attention being given to the two core impediments to business growth. Small business employment has been a focus of attention lately. There has been the Senate committee report and the federal Office of Small Business is currently undertaking an evaluation of two of its small business programs that aim to promote business growth and employment. The Senate committee report shows very clearly that the primary employment driver in the small business sector is business growth spurred by economic growth. Obviously priority should be given to policy that maintains a high level of production.

As well as making it possible for business to maintain high levels of production—and, of course, these are not in any case matters that rest only in workplace relations laws, as Senator Murray suggested—we have to liberate the workplace further to take account of how Australians nowadays want to work. There is a high level of casual employment in the restaurant and cafe sector, which operates on razor thin margins and experiences a high rate of both business openings and business closings. But casual work suits a great many of today's Australians and it is not necessarily something that is of disadvantage to the country, the economy or the people engaged in casual work. Similarly, part-time work is also gaining in popularity and it is not doing so because—although this is what the Labor Party sometimes seem to want to say—that is all people can get.

The Labor Party has for a long time been struggling to get out of its collectivist cave and to come to grips with the reality that a great many Australian people do not want to be busy little worker bees in some vast socialised employment market where the unions tell them what to do and when to do it or what not to do and where not to do it. The primary aim of all business is to grow, and this applies to small business just as much as to big business and global business. It even applies to the growing number of sole business operators. Everyone wants to get ahead; indeed, this is what drives human society.

The role of government in this environment is to facilitate growth—to make it as easy as possible for a business, any business, to grow and to contribute to national growth. We all know, even those opposite, that businesses and the community generally have long held concerns that termination of employment provisions are an employment disincentive for small business. Aside from the general philosophical point that the law should avoid being an impediment to enterprise—and we on this side of the chamber hold that to be an immutable principle essential to the operation of a free society—it is also plain commonsense to liberate the workplace.

These concerns were noted in the More Time for Business response from the government in 1997, near the beginning of the liberalising and liberating process that Australia has chosen to go through in the employment area. That report found that termination of employment provisions have a disproportionate impact on small business, which can neither afford the high costs associated with a highly regulated and formally structured system nor find the time to engage in the lengthy processes which ensue. A range of surveys since then has reinforced that point. Small businesses are more likely to employ new staff and employ staff on a permanent basis if freed from what is, in effect, a restrictive trade practice in terms of the prospects of unfair dismissal claims. This survey information was covered by the Department of Employment and Workplace Relations in its submissions to Senate inquiries into bills seeking to exempt small business in 1998 and 2002.

More recently, as I have stated previously, a new Yellow Pages survey report commissioned by DEWR from the Melbourne Institute of Applied Economics and Social Research, with results released in October last year, has found that state and federal unfair dismissal laws impose extra costs of $1.3 billion a year on small and medium businesses and reduce employment for low-paid workers by one per cent. Small business organisations representing a wide range of small businesses, including the Australian Chamber of Commerce and Industry and the Small Business Coalition, have argued that the laws should be changed to make them less onerous, particularly for small businesses. A major cause for concern, as I briefly alluded to before, is that small businesses are generally unlikely to have dedicated human resource professionals within their management structures, let alone personnel departments to handle recruitment and performance management processes necessary to defend unfair dismissal claims. They are also unlikely to engage outside specialists to assist in this area.

The focus of interest for many in the bill we are now debating is that it proposes to establish a single system throughout Australia at the expense of state jurisdictions. In a federation—and I would venture to suggest particularly in our federation—one should tread very lightly in all areas where the existing rights and obligations of subnational and local levels of government are concerned. I do not believe in the principle of centralism as a force that over time is permitted to take over everything. In Australia, where we have a relatively small population in a relatively large landmass, we must always take proper account of regional differentiation and the commonsense that tells you that things in Townsville, for example, are likely to be very different from things in, say, Traralgon.

But there is a strong argument, and I believe a convincing one, for creating employment conditions on a national basis where the application of the law is concerned. There is no reason why an Australian living in Townsville should be governed in his or her terms of employment in any way differently from an Australian in Traralgon—or, indeed, anywhere else. There is one rider I would put on this condition, however. Universality in employment terms, so far as the law governing dismissal is concerned, works only when the principle that is engaged is the principle of maximum freedom of movement.

It is vital to balance the interests of employers and employees. For the most part, sensible people will come to some mutual arrangement that, provided it is within the employment law, should be nothing to do with anyone else. In the argument that is often advanced from the other side of the workplace relations debate, it too often seems that it should be compulsory for an employer to take on—and keep on, even if unsustainable—a particular person. That is not how the world works, of course. It certainly is not any sort of policy that will assist in maximising profit and thereby contribute to business growth, local community growth and national growth. It is at bottom an anticonsumer market argument and, as such, it should be rejected. The concept of a single market for unfair dismissal relations—the concept that is the fundamental purpose of this bill—does nothing to offend against the single most important element of governance that a free federation such as ours should never surrender: protection of the individual's right to be an individual.

We can expect the Labor Party and the union movement to attempt to demonise any moves towards greater freedom in the workplace. They are so caught up in their time warp that unravelling the web of employment constraints that exists in this country always carries the risk of strangling them. They will escape that fate only by making up their minds to free themselves from commitments to the past that hold no relevance in the 21st century in Australia.

The future legislative amendments proposed to improve the Commonwealth unfair dismissal scheme are an expression of the `fair go all round' principle on which the existing unfair dismissal provisions are based. It would be very hard to characterise them as radical, and you would have to be potty indeed to consider them dangerous. They are designed to give the commission stronger direction in cases to allow it to more effectively balance the interests of all parties concerned.

In his second reading speech, opposing the bill, of course—a regrettable but thoroughly unsurprising position—the member for Barton, the opposition spokesman on this area in the House of Representatives, complained that it would lead to duplication of resources, Commonwealth and state. His remarks are worth repeating here. It is refreshing indeed to hear a Labor politician so staunchly defending states' rights, even if in this instance he is completely mistaken in the approach that he has chosen to take. The member for Barton said:

It is a significant bill. It proposes to override state unfair dismissal laws insofar as those laws apply to corporations. Any instance where this parliament seeks to override state laws is of significance because we are here as part of a federal system of government and we should not ignore the significance of this parliament attempting to override state laws.

The member for Barton is from New South Wales and, as a member of the Labor Party, is presumably happy with the continued restriction of business and employment opportunity represented by his party's long established policy of `cosyfication'—and I admit that I have made that word up—with the unions. I am from Queensland, where the present government, as its opening act of vandalism on assuming office in 1998, destroyed the sensible industrial relations reforms that I put in place as the relevant Queensland minister in 1996-97. So I declare a particular interest in seeing a continuation of Commonwealth improvements to the workplace environment and to business prospects.

It is, I suppose, possible that this legislation might lead to duplication of resources— I stress, in a very limited area—but there are two things to say about that. The first is that in a federation there will inevitably be some duplication across jurisdictions. The second thing to say about it is that it is a sterile argument and one that is, frankly, not altogether germane to this debate. Passing this bill—which I support as sensible policy and which, ever hopeful, I commend to the Labor Party—would provide better support for small business as a major employer of Australians. State jurisdictions would still have powers in areas where the Commonwealth's writ did not run. That is how we have always run our federation anyway. And I think if they are honest with themselves, honourable members opposite would admit that.

The member for Barton, in the other place, has not persuaded me that he is speaking with anything other than continued repression of small business and enterprise in his mind. I am far more persuaded by the argument of our side: by the argument of this government and of my friend and colleague the Minister for Employment and Workplace Relations. I suggest to honourable members opposite that the sun will still rise—and in the east—and set in the west, and the stars will continue to shine, if we pass this bill, which I support.