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Tuesday, 28 June 1994
Page: 2146


Senator CHAPMAN (9.38 p.m.) —On behalf of the opposition, I move:

5.Clause 7, page 4, proposed subsection 170EDA(1), lines 9 to 19, omit the subsection, substitute the following subsection:

    "`170EDA.(1) If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1), the termination is taken to have contravened that subsection if the applicant proves that, because of subsection 170DE(2), the reason or reasons the employer terminated the employment were not valid.".

This amendment to clause 7 relates to the onus of proof provisions in the legislation with regard to unfair dismissal. The opposition believes that the current legislation puts an unfair burden on the employer with regard to the onus of proof that an employee has been unfairly dismissed. Therefore, the effect of our amendment will be to change the present onus of proof provisions applying to unfair dismissals to put the onus of proof on the employee to prove that that particular employee was unfairly dismissed.

  We believe this is a much fairer provision. If employees want to take action in relation to their rights with regard to unfair dismissal, they should have to prove that they have been unfairly dismissed and that the requirements of the legislation with regard to unfair dismissal—that is, unconscionable or unfair actions on the part of the employer—have in fact occurred. Unless an employee can establish that that dismissal was unfair on the basis provided in the legislation, the employer should not have to be saddled with charges of unfair dismissal. It is on that basis that I have moved this amendment.

  The intent of the act as it is currently drafted is to implement an ILO convention concerning the termination of employment—that unfair dismissal be shared between employer and employee. The effect of our amendment is to reject the split onus of proof provision and to put the onus of proof on the employee. We believe that, in the circumstances of the provisions of this legislation, that is a reasonable approach.

  The onus of proof provisions currently in the legislation are unfair and unreasonable with regard to employers and, again, are a disincentive to employment. Unless we achieve this change to the legislation, employers will not have the incentive to employ more people, and that must be the bottom line of our industrial relations legislation—the effect it has on employment levels and the incentive it offers to employers to take on employees. If there are severe disincentives, which we believe there are with regard to the unfair dismissal provisions, then employers will simply not take on employees in the first place knowing that they are faced with these onerous provisions.