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Tuesday, 24 March 1998
Page: 1193

Senator COONEY (5:58 PM) —The second reading speech on the Workplace Relations Amendment Bill 1997 [No. 2] states:

The bill is intended to ensure that small businesses are exempted from the federal unfair dismissal provisions, in respect of new employees. This exemption is necessary and appropriate, given the special features of small business—and it is necessary, to ensure continuing growth and employment in small business

That is not quite correct. If you look at the bill you find that it states:


(5A) An application under subsection (1)—

that is the wrongful dismissal provision in the Workplace Relations Act—

may not be made on the grounds referred to in paragraph (1)(a), or on grounds that include that ground, by an employee (other than an apprentice) whose employment has been terminated by the employer . . .

The only impact the amendment would have on the act is to remove those grounds set out in (1)(a) which entitle an employer to terminate the employment of an employee. Those grounds are that the termination was harsh, unjust or unreasonable. So that if the employer terminates a worker and that termination was harsh, unjust or unreasonable, then the worker cannot take any action against his employer. But he or she can, if the grounds are those set out in 170CB. If the termination of the worker is on the grounds set out in sections 170CK, 170CL, 170CM or 170CN, then the employee can take action.

It is a most peculiar situation where you have an act—if this is passed—which allows an employee to take action if he or she is dismissed on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. If an employer who employs 15 or less people sacks his employee on those grounds, then that employee can take action; or if the employee is sacked because he or she was temporarily absent from work because of illness or injury, within the meaning of the regulations; or if he or she had a trade union membership or participated in trade union activities outside working hours or, with the employer's consent, during working hours; or if he or she is sacked because they are not a member of a trade union, the person can take action under subdivision B.

The interesting thing is why. I have read this already, but if you look at what is said in the second reading speech, you will see that this is to help small business by taking away the ability of the employees of small business to sue when they are wrongfully dismissed. If that is going to encourage the growth of employment in small business, why does the government go halfway and halfway only?

It just seems absurd that you would have an act that allows a small employer to dismiss his, her or its employees on certain grounds and those certain grounds would not entitle the person to sue for wrongful dismissal, but allows that person to sue for wrongful dismissal if it is on other grounds. So an employer can be as harsh, unjust or as unreasonable as he, she or it wants and the employee cannot sue. But if the dismissal is in any way connected with race, colour, sexual preference—and that would include I suppose, transsexual people—age, physical or mental disability, marital status, then the employee can take proceedings.

The philosophy behind this act must mean that the government does consider that there are many grounds—and they are set out in the act—in respect of which it is fair and reasonable that the worker can take action if the employer has sacked him or her on that basis. But—and I keep repeating this because it is such an amazing matter—although the philosophy behind the government is to allow any employee to take such action on those other grounds that I have mentioned, it does not allow an employee to take action if the termination was harsh, unjust or unreasonable.

It just seems a patent nonsense that legislation could be brought into the chamber which allows that situation to exist. In other words, the government's legislation is saying, `Oh yes, we do think there are grounds upon which it would be wrong for a small employer to sack his, her or its employee, but there are other grounds where we don't.' That approach would be consistent with the propo sition that this is really populist legislation; that the government, in bringing forward this legislation, thinks that the small business people will be attracted to voting for the government because it changes the wrongful dismissal legislation. At the same time, the government realises the reaction against doing that might be too great if it went too far, so it cuts back the grounds upon which dismissal can take place without there being a right to go to the commission.

We heard speakers before—Senator Mackay, for example—talking about people who did suffer a great injustice in the way they were dismissed from their employment. Listening to what Senator Mackay had to say, it seems a dreadful business that this legislation should be allowed to go on in this way.

A lot of the problems raised by the government are problems of process. They said it is going to cost small business a lot to take proceedings and it is awkward to go to court. But it seems quite a ridiculous situation to say, `Because our legal system has flaws in it, people are going to have their rights taken away.' I can understand an argument that says the legal system leaves a lot to be desired; therefore we will try to fix up the legal system—`The system before the Industrial Relations Commission is such that they have to improve it.' But we should not allow the defects in the system to resonate through the community in terms of people being deprived of rights that they should have as workers. The second reading speech states:

The exemption is from the federal unfair dismissal provisions, only. Employees will still be protected by the Workplace Relations Act. Section 170CK protects employees against dismissal because of any discriminatory reason. Sections 170MU and 170WE prohibit dismissal of an employee because the employee engages in protected industrial action, seeking a certified agreement or in AWA industrial action.

It is not as if the government does not know the inconsistencies in this legislation. It is not as if the government does not know that it is picking and choosing as to on what grounds employees might be able to take action. It cannot plead that it does not know what its legislation means about small business be cause that is set out in the second reading speech.

It just seems a most peculiar approach to a fundamental right that people should be able to have some protection. It is said that the employer would be put at risk if it had to go to litigation, but of course so would the employee. There is a balance between the two. It seems that, if there is an unfairness, if there is a hardness and if there is an injustice, then it is proper that the umpire, the person we always refer to in these situations, should have a say about what should be the result of an action.

True enough, a small business might be concerned about putting people on if they cannot dismiss them, but that would be the same sort of argument that a big employer could use. So it seems a little pointless to say, `Because people will not be taken on if we do not take away the wrongful dismissal law, we ought to abolish it in respect of small business.' We ought to be saying the same for big business, but we do not. So the whole argument that is put forward by the government in this instance is well beyond understanding, seems to be contradictory and seems not to be the sort of legislation that a responsible Senate would put through. The least we could ask is that there be some consistency.

It is clear that the community not only in the employment field but generally is feeling great insecurity. There are lots of laws passed that take away those sorts of rights that we have as citizens—rights of privacy, rights to have a telephone conversation that is not tapped and rights of migrants to have their cases properly heard. This is yet another right that hits at the very heart of the community. It hits at the working community of Australia. Most growth in employment is going to occur, it is always said, in small business.

People should not have a regime thrust upon them where they have no security. They would have no security if the employer could just sack them willy-nilly—do it harshly, do it unjustly and do it unreasonably. The employee would have no come back. It is a situation which you could not in justice ask the workers of Australia to tolerate. We cannot in justice allow this legislation to go through. If it is the occasion of a double dissolution, then it would be interesting to hear what the people who are looking for security and have not had it under this government will say about the one entitlement they have to feel some security in their employment—that is, to take the employer to court and for the umpire to decide the issue. I hope this legislation is defeated, as it should be, a second time.