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Monday, 22 March 2004
Page: 21560

Senator MURRAY (8:13 PM) —I move R(3) on sheet 4160 revised:

R(3) Schedule 1, page 4 (after line 30), after item 4, insert:

4A Section 170CBA

Omit “12 months” (wherever occurring), substitute “6 months”.

We revised this amendment from this morning because we had not taken into account the recent changes to the Workplace Relations Act as a result of the Workplace Relations Amendment (Fair Termination) Bill 2002, which moved the casual exclusion from regulations to the act. I remind the minister that not all is doom and gloom in his world; the government does sometimes get workplace relations bills through this chamber, and this was one of the instances where that occurred.

At the moment the probationary period for casual employees varies enormously between the various jurisdictions. In the Commonwealth jurisdiction, which covers Victoria, the ACT and the Northern Territory as well as those people who fall under Commonwealth legislation, the probationary period during which casuals are excluded from accessing the federal unfair dismissal laws is 12 months. In New South Wales it is six months. In Queensland it is 12 months, excepting for valid reasons. In South Australia it is six months, and in Western Australia and Tasmania there is no exclusion.

I saw a recent figure that showed that the number of casuals nationally has increased very significantly to about 2½ million employees, many of whom we would have classified as part-time regulars rather than casuals—to use the old terminology. As far as I can establish—and as the minister's advisers will tell him—it is very difficult to work out where casuals fall in terms of state and federal legislation, but mostly the evidence is that casuals fall under state legislation. It is extremely undesirable for there not to be a common national standard as to when probation applies.

When the Democrats agreed with the government originally to establish a probationary period of 12 months, it was regarded as reasonable in the circumstances—that is, reasonable to us. However, we think the nature of casual employment has changed so much that it is time to look again at the probationary period. Also, we need to diminish somewhat any anxiety the states, and the various organisations within the states, would have at covering the field—a provision which may result in numbers of their employees losing the access that they presently enjoy to the unfair dismissal jurisdiction.

In this amendment we recommend that the probationary period—the period for which people are excluded—be six months. That would deliver improved access for those under the Commonwealth jurisdiction at present—Victoria, the ACT and the Northern Territory. It would provide the same access for New South Wales, improved access for Queensland and the same access for South Australia. Western Australia and Tasmania would move from a no-exclusion basis to an exclusion basis.

Frankly, as I said in my speech in the second reading debate, I have always had difficulty with the idea that there should be no probationary period at all for an employee. I have never understood that and I have not understood why it would be reasonable in the Western Australian and Tasmanian jurisdictions. Now my party and I have to carry the weight of the balance of power on these issues. Faced with the circumstances where you effectively have three positions in unfair dismissal—12 months, six months and zero months—what Senator Abetz wants me to do is agree with him and just impose 12 months on everybody.

I have taken a reasonable middle position and I think that this is a reasonable approach. The employee probationary period for permanent staff is three months and for casuals it would be six months. I recognise that that would be a compromise between the various jurisdictions, but it would assist the advancement of this bill. Regrettably, the government and the Democrats have not been able to agree on that matter, but I want to thank Minister Andrews for his efforts to resolve this particular issue.