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Tuesday, 28 June 1994
Page: 2142


Senator ELLISON (9.06 p.m.) —The Industrial Relations Amendment Bill (No.2) endeavours to answer widespread criticism of the termination provisions contained in the Industrial Relations Act. There has been a good deal of publicity surrounding criticism not only from employers but from a wider sector of the community in relation to the provisions in that act. One of the comments made by Mr Brereton was that this bill seeks to share the onus of proof between employer and employee. I wish to address my remarks to perhaps two or three points contained in the bill and will leave other comments to the committee stage.

  Clause 6 of the bill provides that if somebody is not employed under award conditions and earns more than $60,000, he or she is not protected by the termination provisions in this bill. Such people have to resort to common law and the costly options have already been outlined by Senator Bell. It may be that at the end of the day the costs outlaid in seeking some remedy in the courts will far outweigh the gain. Therefore, I believe that in the first instance there is some discrimination.

  I refer the government to article 2 of the ILO termination convention which states that the convention applies to `all branches of economic activity and to all employed persons.' I believe the question of whether one works under an award or not should make no difference. I support the amendments which are foreshadowed by the coalition and which will seek to remove any reference to anyone working under an award. I believe there should be no such distinction.

  Perhaps it is the onus of proof that causes me most concern. If one makes an application under section 170EA of the Industrial Relations Act—relating to an employee making an application in relation to an allegedly unfair dismissal—the employer has the onus of establishing that the dismissal was for a valid reason. In regard to clause 7 of this bill there are two references—the first relating to section 170DE and the second to section 170DF. A reason is not valid if having regard to the employee's capacity and conduct in those operational requirements the termination is harsh, unjust or unreasonable. The other provision is to the effect that an employer must not terminate an employee's employment for any one or more of certain reasons. It mentions temporary absence relating to illness, union activities, race, colour, sexual preference and also absence from work during maternity leave.

  One could understand that in modern Australia those are perhaps valid reasons for being absent from work and that they should not attract any sanction as such if legitimately maintained by the employee. But the problem is that the onus of establishing that in this bill falls upon the employer.

  At common law it is the plaintiff who has the onus of proof, and normally it is proof on the balance of probabilities. If we allege something at law the onus is upon us to prove the matter. That is a matter of law and commonsense. The person who is making the application under clause 170EA is the employee. It is the employee who is alleging unfair dismissal. Therefore I believe that the onus of proof incorrectly falls on the employer.

  In modern Australia the trade unions play an important role in the industrial courts. Workers have the ability to be represented by trade unions. It is not as if it falls upon the worker to present his case on his own; he has the resources of the trade union to assist him. I do not take any issue with that. However, the worker is not at such a disadvantage that he should not bear the normal onus of proof at common law.

  Under the bill there is supposed to be a sharing of the onus: that is, the applicant has the onus of establishing any other elements in the case. It still falls upon the employer in the first instance. I believe that that is inappropriate in Australia today. Employers should not bear that onus.

  There has been much discussion about a cap in compensation. I can understand why the government has raised this issue. There is some reverse discrimination against people under an award because a person earning over $60,000 who is not under an award goes to common law and can perhaps get much greater compensation. I mentioned earlier that that person could well suffer the other edge of the sword: that is, having to outlay the money and not getting compensation sufficient to meet his costs. In the end it is a pyrrhic victory.

  However, for a worker under an award the other edge of the sword is that he could obtain a much greater award of compensation. I believe that there is another angle of discrimination between those under an award and those not under an award. A person with a salary of $60,000 is not the average worker. I see that Senator Bell agrees with me. Discrimination can work both ways: it can work against the worker under an award and against the person who is not under an award. I believe that this proposed legislation is flawed. An employee employed under an award has a cap of either six months compensation or $30,000, whichever is the lesser. I understand that the Democrats propose as a compromise that it should be whichever is the greater.

  I believe that there should not be a choice at all. If there is to be a cap, then six months compensation would be appropriate. We could have a person in a job who is on a vastly different salary from another person, and six months salary could mean a great deal more. I believe it is fairer to attach the compensation to the salary.

  I do not believe that this bill cures the complaints made about the Industrial Relations Act. As a person who has employed people over 13 or 14 years, I can say that there certainly should be rules as to how people have their employment terminated. In a fair society one expects that an employer should go about things in a reasonable manner and that there should be such things as notice, and payment in lieu of notice.

  But, at the end of the day, we cannot make employers hidebound by such regulations, because we will have a downturn in employment. We will have employers resorting to the use of consultants and all sorts of artificial methods of employment in order to sidestep the regulations. We can hardly blame them for that when we look at the onerous provisions contained in this legislation.

  This legislation is not in the interests of employers or employees. I believe that an employer should have the right to sack a worker where there is a question as to the worker's diligence or his ability to carry out his or her duties. That is basic commonsense. This country cannot run on anything but that. If we make the provisions of termination of employment too difficult and too unwieldy, and if we impose burdens upon small employers particularly, in the long run employment will suffer. The next step follows as night follows day: the country as a whole will suffer.

  We have to strike a balance between economic viability and fairness. The government is incapable of doing that. I am not going to indulge in rhetoric against the unions and I will not countenance rhetoric against employers because that misses the point.

  We have to tell the people of Australia that we are a fair society; a society that believes in the individual's ability to earn a dollar. We believe that it is everybody's right to earn a dollar. We believe that it is a person's right to hire people to work for him. It is also his right to terminate employment, and to do so on fair grounds; grounds that are acceptable to the community as a whole. But it is not sufficient to invoke complicated and regulated methods which will just see more and more disputes in industrial relations courts. That is no recipe for success. It is no recipe for consensus in the industrial arena.

  The government makes out that it represents the worker. I have had severe doubts about that on more than the odd occasion. Bureaucrats should not have such input as I believe they have in this instance. The people at the coalface should have the input here; the people who have experience of what actually goes on in the workplace, not some bureaucrat who might believe that we have struck some sort of equation or formula such as we find in clause 6.

  If we look at the Industrial Relations Act 1994 we see over 400 pages of legislation. Where is this country going? That is not the way to approach things if we are to get back to basics. Fairness does not involve 400 pages of convoluted legislation. Fairness does not involve any breach of long accepted legal principles of the onus of proof. Any tinkering or any sort of messing around with it will only end up in disaster. I believe that the worker has more than sufficient safeguards in the current legislation. I believe that the termination provisions have gone too far. This bill does nothing to fix that situation.