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Tuesday, 16 September 2003
Page: 20167


Dr EMERSON (4:50 PM) —The Workplace Relations Amendment (Fair Termination) Bill 2002 is yet another of the minister's `dirty dozen' bills. It is another bill that weakens the protections available to working Australians. So what is this legislation all about? It moves an exemption for casual employees from unfair dismissal laws from the workplace relations regulations and into the Workplace Relations Act. The minister already has a regulation that says that casual employees have no protection from unfair dismissal laws for their first 12 months. This bill changes the act to put it into the act itself, rather than into the regulations. I know the minister has just confirmed this and is anxious about the regulations, given that an earlier version of them was found to be invalid by the Federal Court in the Hamzy case in November 2001. Importantly, the Hamzy case also found that the Howard government's constant tirades about unfair dismissal laws holding back employment growth were completely unfounded.

Just today and yesterday in the parliament, the Minister for Small Business and Tourism repeated the complete fallacy that the passage of another bill, a related bill—that is, that all small businesses with fewer than 20 employees be exempt from unfair dismissals—would create 50,000 jobs. It is interesting to relay the origin of this great estimate. Rob Bastian, head of the small business association COSBOA, received a phone call one day from a journalist who said, `What do you think might happen if this particular legislation goes through; what will be the impact on jobs?' Rob Bastian said, `Well, I don't know; maybe 50,000.' At that point Rob was running a one-person show. That is the government's total scientific endeavour in this area. Rob Bastian made up the number of 50,000 and the government has repeated it time and again, hoping that, the more often it says it, the truer it will be. There is absolutely no basis for it, as was found by the Federal Court. After listening to the government's case—this is at paragraph 70—the court found:

... it seems to us the suggestion of a relationship between unfair dismissal laws and employment inhibition is unproven ... Whether the possibility of encountering an unlawful dismissal claim makes any practical difference to employers' decisions about expanding their labour force is entirely a matter of speculation.

Indeed, it is. It was speculation from Rob Bastian which was then repeated here today by the minister for small business, as if some science or some sort of econometric analysis were behind it. There is not, and the court found accordingly. We all know that the government has spared no expense in getting together its so-called evidence to try to convince the court that unemployment would rise substantially if these regulations were found to be invalid—and all this effort was, after all, unpersuasive. But the Howard government does not care about the finding. It continues to bang on about unfair dismissal laws costing jobs. It does that despite having been told, on the basis of the best evidence, that its claim is spurious and wrong.

This bill is rather unusual for this minister in that it has made it through the Senate, even though it is coming back in an amended form resulting from amendments proposed by the Democrats and supported with considerable reluctance by the government. What is in the final package? We are dealing with a bill that entrenches in legislation a situation where casual employees can be dismissed unfairly at any time in their first 12 months of employment. Labor opposes it on principle. Why should a casual employee who has been employed for up to 12 months, whereby the employer has had a good look at them, not be able to access remedies if they are dismissed unfairly? It is a very unfair bill. But bills with Orwellian titles such as the `fair termination bill' have become commonplace.

The Democrats' amendments make two changes. The first is to protect casuals from unlawful termination from the very first day they are employed, and of course Labor supports this amendment. It ensures that unlawful behaviour such as dismissal for reasons of gender, race or union activity is not tolerated at any stage. But I have to say that it is a bit of a hollow victory. Very few casual employees have the resources at their disposal to bring such actions. These provisions are rarely used on their own, as they have to be enforced in the courts and, as such, are very expensive and time consuming. Nevertheless, the principle is sound and Labor will support this amendment. (Extension of time granted)

The other change passed in the Senate allows successive periods of casual employment not more than three months apart to be added together to amount to the 12-month qualifying period. Labor opposes this amendment for the same reason that it opposes the 12-month exclusion. We do not care how you slice it, dice it or add it up to get to 12 months; 12 months is just too long for an employee to be without any protection whatsoever from being dismissed unfairly. Labor has consistently held the view that legal protection should be provided from unfair dismissal to casual employees engaged on a regular and systemic basis for a period of at least six months. Being engaged on a regular and systemic basis, even if it is called `casual employment', effectively means that the nature of engagement of these employees is very similar to that of part-time or full-time employees, so they should not have substantially different rights. They are, in effect, part-time employees or similar to full-time employees because of the nature of that employment—regular and systemic.

Labor argues that a six-month period for such casuals who, for all intents and purposes, are part-time workers is more than adequate time for an employer to have a look at that employee and make a judgment about them. If after that period of six months such employees are dismissed unfairly, we believe that they should be able to access remedies for unfair dismissal. The situation now is that all they will be able to access is a remedy for unlawful dismissal—hardly a streamlined process, which is what the unfair dismissal regime is meant to be. It will mean that, if employees do seek remedies under the unlawful provisions, it will be more expensive, more protracted and, therefore, more costly to small business. We hear time and again that the government is the friend of small business, but it is actually herding employees into a situation where, having been denied the remedy of the unfair dismissal regime, they will have to seek alternative remedies—those alternative remedies being more costly and more protracted.

If the government truly were the friend of small business, it would have cooperated with Labor in working out whether there was any scope for further streamlining the unfair dismissal regime rather than exempting businesses and employees from the unfair dismissal regime. The minister would not be very encouraged by this particular legislation passing through the Senate. After all, we know as a result of the pursuit of this issue—as the minister for small business says—18 times in the parliament that the government's true desire is to ensure that all small businesses with up to 20 employees are able to summarily sack their workers without giving any stated reasons and without giving any warnings, with those employees therefore having no remedies whatsoever and no recourse. What is fair about that?

George Orwell would be proud of this government because it consistently calls these bills `fair termination' bills and `fair dismissal' bills when they are unfair. This is some cute trick in that the government thinks that, if it says it long enough and often enough, it will become true. The member for Griffith is here. He is fully aware of the capacity of this government to say something long enough and often enough, hoping that eventually the Australian people will believe it. That is the government's tactic. It has been its tactic in relation to the so-called fair termination bill and the fair dismissal bills. It is unfortunate that the bill before us today ignores the realities of the workplace. It ignores the sense of a fair go and leaves casual employees out in the cold for a full 12 months. For that reason, Labor opposes the provisions in the bill that have this effect. In fact, we oppose this bill, as amended by the Senate, in its entirety.