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Tuesday, 24 March 1998
Page: 1195


Senator FORSHAW (6:14 PM) —May I congratulate my colleague Senator Cooney on an excellent contribution. I would like to pick up on the points that he was making at the conclusion of his speech. This is unjust legislation. This is legislation which clearly discriminates against a vulnerable—some might say the most vulnerable—section of the work force in this country. This is legislation that is also completely unnecessary. It is legislation that is founded upon rhetoric, upon scaremongering, upon an ideological obsession.

Since this government came to office, the solid commitments made by John Howard, then Leader of the Opposition and now Prime Minister, and Mr Reith, now minister for industrial relations, have been thrown out the window. What were those commitments? There was the all-embracing commitment of the Prime Minister that he wanted an Australia where people felt relaxed and comfortable. Clearly, this legislation does not make employees of small business relaxed and comfortable. The one protection they have against unfair dismissal is being removed.

The other commitment with respect to industrial relations was that no Australian worker would be worse off under this government's proposed industrial relations changes. The document Better pay for better work released in February 1996 clearly stated:

The coalition believes that employees should have access to a fair and simple process of appeal against dismissal—based on the principle of a `fair go all round.'

There is no fair go all round in this legislation. Rather, this legislation discriminates against a particular section of the work force by removing their right, a right that should not be fettered before the law.

Furthermore, in late February, Mr Reith, the then spokesperson for the opposition, said:

Our position is very clear. If you've been unfairly dealt with at work, then you should have a right to appeal.

But now once again we have legislation before this parliament which seeks to remove that right. It seeks to remove the right of individual employees. We know that this government does not like trade unions. We hear that constantly every day from senators on the other side. They actually think that trade unions are some sort of pariah in society. I do not want to deal with that issue today, but it is clear that their whole modus operandi in terms of industrial relations is about breaking down representation and/or rights of workers.

Firstly, they attack trade unions, the concept of collective representation. Then, when dealing with a particular section of the work force that very often is not unionised—where there may very often be, say, only one employee in a small business—their approach is to destroy the rights of that individual. I can remember a former senator in this place, now a minister in the other place, Mrs Bishop, lecturing us ad nauseam about the benefits of individualism over collectivism. Yet when it comes to a pretty fundamental right for an individual worker—as I said, very often in a small business there might be only one or two workers, maybe not in a union—what is this government's approach? It is to remove their rights to take action against unfair dismissal. So much for the commitment to liberalism or liberal principles from this coalition.

I want to return to some comments I made in November 1996 when the first workplace relations legislation went through this parliament. At that time I referred to an editorial in the Sydney Morning Herald of February 1996 entitled `Fair and unfair dismissals'. I commented at the time that this was an important editorial because it actually spelled out the lie in the campaign being run by employers and by the then opposition about how unfair dismissal legislation was the root of all evil and the cause of unemployment. The Sydney Morning Herald has never been noted for being a pro-Labor or pro trade union news paper. Later in my speech I want to refer to some more recent comments in terms of assessing this issue, but the editorial at the time stated:

Statistics released by the Industrial Relations Court in December—

that is, December 1995—

suggest that the operation of the law has not been as onerous as commonly implied. In 1994-95, 87 per cent of the 7,749 unfair dismissal claims lodged that financial year were either settled or discontinued before determination by the court and another 4 per cent were settled or discontinued before the determination process had started. Of those determined by the court, 56 per cent were decided in the employee's favour and 44 per cent in favour of the employer. And in the 219 cases where compensation was awarded, 74 per cent involved amounts less than $10,000, about 22 per cent involved amounts between $10,000 and $20,000, and less than 4 per cent involved amounts of $20,000 or more.

This suggests that much of the criticism of the law has stemmed from perceptions of its operation rather than its practice.

It will be recalled that that editorial and that commentary were in regard to the legislation that existed under the previous Labor government, legislation that this government had so stridently attacked, suggesting that it was causing employers, particularly in small business, not to employ people.

There was a massive campaign—we all remember it—to run the line in the public arena that small business would not employ people because it was too hard to sack them. That has always been the atttitude of this government. It is more concerned about ensuring that employers have rights to sack people than it is about getting employers to employ people—how to increase employment in this country.

During the period that the Labor government's unfair dismissal law was in operation—and, I might say, that was the amended unfair dismissal law which had given further concessions to employers—what did the employment figures show? The fascinating feature was that during the period between March 1994 and March 1995 employment in small business in this country grew. In one calendar year it grew by 176,000 employees. Small business in this country grew. In fact, it was the only section in terms of the employment profile where there was significant growth. In the manufacturing and large business sector employment remained fairly constant. In the public sector there was a decline in the level of employment.

The figures tell the opposite story to what has been the rhetoric of this government—certainly when it was in opposition and now in government. Looking at a longer period—over the last 10 years or so since 1985—one finds that in this country small business has grown by 1.1 million employees. Since 1985 employment in the larger business sector has grown by approximately 410,000 whilst, in the public sector, employment has declined—and we all know that—because of cutbacks in the level of public service employment.

The Sydney Morning Herald had it right when it said there was never a problem, and there is still no problem, with respect to the propensity for small business to employ people in this country vis-a-vis unfair dismissal laws. In all of the years during which the Labor government's legislation was in place, which the Liberal/National parties said was a restraint upon small business employing people, employment in small business actually rose. That in itself demonstrates that this legislation is totally unnecessary. This is a straw man argument. The government is saying that there is a problem, that employers will not employ people in small businesses, and then it says that we have to fix the problem by getting rid of unfair dismissal laws. It is an absolute furphy.

The second point I wish to make is that this legislation will have very little impact upon small business in any event because the bulk of small business employees in this country are not employed under federal awards. Generally, they are employed under state awards—state common rule awards—which have general application across the industry. In New South Wales, for instance, shop assistants and employees in the retail sector, the clerical sector and a whole range of other areas are employed under common rule state awards, particularly in small business. They are not generally employed under federal awards. The legislation is clearly nothing more than window dressing to create an impression in the community that the government is doing something about improving employment in small business. It is not. I quote from an article which appeared in the Australian Financial Review on 4 November last year:

Unfair dismissal laws have been damned as the obstacle to job creation, and held to blame if small business does not employ new staff.

While governments and industry groups exchange volleys on the issue, does small business really care?

Most small businesses—86 per cent—fall under State, not federal, law. So it is of scant interest to them that the Federal Government failed in the Senate to push through provisions that exempt businesses with fewer than 15 employees from unfair dismissal provisions.

Few small businesses, except in Victoria and the Territories, will have access to those federal laws.

The article goes on to say:

In a recent survey of 300 small businesses, which asked about impediments to job creation, unfair dismissal laws were rated last. Only 7.1 per cent of the businesses—80 per cent of which employ fewer than 20 people—saw unfair dismissal legislation as a bar to job creation.

Further on in the article it states:

The federal president of the Australian Small Business Association, said unfair dismissal legislation was not regarded as a major issue by its members.

"When small businesses rate the issues which affect them (eg unfair trading, taxation) in order of importance, unfair dismissal is always around the bottom of the list. While there is a perception that unfair dismissal law is a threat, there will be small businesses which will avoid employing people."

As the article demonstrates, this issue does not rate when it comes to the problems faced by small business in this country. I can give specific examples of the concerns in the area in which I live, as I am sure other members of the Senate and the parliament can. For example, what are the shopkeepers in my area concerned about? They are concerned that Woolworths has built a huge shopping mall and may drive a number of small businesses out of business. This includes the butcher, the greengrocer and possibly the person who operates the local petrol station because now the major supermarket chains are into petrol retailing. In fact, there is virtually no product that you cannot buy in a supermarket.

I am not here to argue the case, as it were, on those issues but to point out that that is what small business is concerned about—the ever-increasing squeeze placed upon them by the big retailers who can clearly undercut them on price because of economies of scale. They are concerned about the amount of regulation and paperwork and they are concerned about unfair trading. They are not concerned about unfair dismissal laws. It is a hollow and false argument—indeed, I would suggest it is completely hypocritical—for this government to say that all we have to do to increase employment in the small business sector by, say, 50,000 employees is to get rid of the unfair dismissal laws. That is an absolute and total untruth.

In conclusion, I point to the hypocrisy of this government in that, whilst it waxes lyrical and is intent upon bringing this legislation forward into this chamber again—as Senator Mackay has said, to provide it with another trigger for a double dissolution—and whilst it talks about unfair dismissal laws, what is it doing about the workers at Grafton meatworks, or at Cobar mines, or at Woodlawn mines?


Senator O'Chee —Quite a lot, actually.


Senator FORSHAW —You are not actually doing anything, Bill. I know you have had a few chats with a few people but this government has done nothing on that issue—not one thing. That is a pressing issue. The real issue the government should be concentrating on is the situation facing workers who have lost up to $20 million in entitlements because of the actions of their employers. The government should have introduced legislation into this parliament to deal with that. That is the real issue about employment. It is about protecting the jobs of the workers and the livelihoods of those workers and their families. But, no, there has been no move whatsoever. I have not heard one speech from a government member in either house on the situation at the three locations I have just mentioned.

There has been no indication that any legislation will be forthcoming from the government to fix the problem of unfair dismissal or unfair determination of those employees. It is the Labor Party that has taken the action through a private member's bill in the other place to try to address the issue. Those are the unfair dismissals that the government should really be focusing on, and not trying to create a phoney war about unfair dismissal laws and their impact upon small business.

I can assure Senator O'Chee and other government members that this con trick will not work. Small business does not believe the government. Small business is deserting the government every day because it has not delivered on any of the major issues that small business is concerned about. This sort of trick will not change the position and the attitude of small business to this government. Small business is finished with this government, just as we will finish off this legislation.