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Wednesday, 25 March 1998
Page: 1216


Senator JACINTA COLLINS (9:36 AM) —I am pleased to be able to readdress the Workplace Relations Amendment Bill 1997 on the occasion of its second reading to make several further points following from the second reading speech of the Minister for Workplace Relations and Small Business (Mr Reith) in the other place. Before I go into the detail of the misrepresentations that have been presented there, I want to revisit the basic points of what this legislation is about. The most fundamental misrepresentation involved here is in relation to a fair go all round.

Senators will recall that champion phrase used by the government in relation to its representation of battler workers, that it was about `a fair go all round'. But a fair go all round does not mean, ultimately, that one-third of all workers—if you follow the government's harmonisation agenda—lose their rights to fair and secure employment. That is the final point of this legislation. As Senator Hogg said, yes it is a political tool at this stage, which really does not affect that significant change at this point in time. But the final end point with harmonisation would mean that the one-third of workers who work for businesses with 15 or fewer employees would lose their rights in relation to unfair dismissal.

There is no case for this legislation. We argued that point quite strongly on the last occasion and nothing has changed. The government's economic arguments regarding the need for these changes—to generate growth, to drive small business and to drive the economy—have no validity. They have as much validity as the suggestion that the solution to the South Korean economic crisis would be to change their legislation. It does not just exempt businesses with four or fewer employees; it exempts businesses with 15 or fewer employees. That is how much validity this argument has. It has no substance.

The argument for these changes, ironically, has as much substance as the size of this actual bill. It is about using a political tool for a double dissolution; it is not about a fair go all round for Australian workers.

The case for this legislation has not been improved in the interim between now and its last presentation. When it was first presented, the Australian Chamber of Commerce and Industry was the only business organisation advocating support, but it was on the ludicrous case that addressed the legacy of the old legislation. Their only argument was that a legacy existed in terms of the attitudes of small business employers with respect to the old legislation, not the government's new legislation that the government went to the last election with.

Even if you take an extension of that argument, if the argument is that there is a legacy of the old legislation, surely the answer is an education campaign. We should re-educate these small business employers so that they understand the current act, not amend it further on some myth.

Small business organisations were, at that time, more concerned about the fair trading issues, which, ironically, are due in the Senate later this week.

Small trading was their concern at that stage. In the meantime, the government has probably belted a few of these organisations across the ears and they have come forward to say what Minister Reith wants them to say. Maybe there was something involved with the fair trading legislation which was finally brought on. Mr Reith cited a couple of the examples that he was able to bring forward in support of this legislation. Let me take one step back. In his second reading speech, Mr Reith said:

Senators who spoke against this bill said that there was insufficient evidence of the need of the bill, and its benefits.

He then cited several of the surveys that were addressed in the committee hearings, which were misrepresented by the government, discredited in our hearings and also discredited through the estimates process. They all related to the old legislation, not to the current act.

We go on to the claims now coming forward from small business who, strangely enough, apart from the ACCI, were not around to present any case during the committee hearings. Mr Rob Bastian, representing the Council of Small Business Organisations of Australia, said that small businesses would create 50,000 jobs if this bill got through the Senate. Well, Minister Reith, that is a very nice statement, but where is the substance? Where is the support for that statement? Where is the proof? This is what we have asked time and time again right through this process: where is the proof?

We then go to Ms Katie Lahey's statement where she drew attention to the New South Wales chamber's own survey conducted jointly with the St George bank. Again, there is no detail of the basis of this survey. Every time we have asked for detail of the basis of any survey, ultimately it ends up being discredited. We move on to the main statement made by Mr Reith in his second reading speech that:

To make it all completely clear for the Labor Party and the Democrats in the Senate, the Commonwealth government has commissioned . . . a Yellow Pages Small Business Index survey—

to ask several questions. In this speech, the minister cited a couple of the outcomes of that survey and said:

In this survey, 79 per cent of proprietors thought small businesses would be better off if they were exempted from unfair dismissal laws.

That is almost a bit like asking the question: have you stopped beating your wife? I am sure, if we asked small business whether they thought they would be better off if they could pay under-award wages, they would be pretty happy too.


Senator O'Brien —Or no tax.


Senator JACINTA COLLINS —Or no tax—that is a very good point—no payroll tax. They would like that situation. The only problem we have with this survey—and it is a pretty fundamental one—is that we have asked the government, through the estimates process: if his survey is good, then please, can we have a look at the questions that were asked? During the estimates process, questions were put on notice asking precisely those questions. Even though the deadline for questions on notice is past, we still have not seen those answers. So the minister is relying upon this survey. And I cannot say I am surprised, given past experience, that he will not fess up to the basis of that survey be cause, as soon as he does, it will be completely discredited.

So here we are in the Senate dealing with this legislation, and the questions we have asked in estimates pertaining to issues very relevant—in fact, referred to in the minister's second reading speech—are not coming forward to the Senate. I hope, when we finally get those questions, we will not be in the situation where we can say, `We think we have been misled in this process because that information has been withheld.' I hope we do not get to that point, but the basics of the situation are this. The minister has referred to this survey in his second reading speech claiming that it should help deal with our concerns and, when we ask basic questions, such as, `What were the questions asked in that survey,' that information has not been brought forward. Why is that?

I could be quite cynical and give another example of why that might be the case. In the estimates process, another question was asked—and we did not need to put this one on notice, fortunately. The question was in relation to a press statement made by Minister Reith which said that information that had been brought forward from the Industrial Registrar was good news in relation to the government's intentions with this legislation. It helped to demonstrate its case on the number of small businesses that were affected by unfair dismissal claims.

When we went back to the basis of that survey and asked precisely what question was asked, we found that the question had been asked in such a way as to be self-selecting. It was self-selecting in the sense that the headline of the question was businesses with 15 or fewer employees. Half of the businesses confronted with that question would have said, `That doesn't apply to me. I won't bother answering it.' This is the quality of the research done when Minister Reith wants to sustain the case for his political tool.

On our side, we are still waiting for questions to be answered in relation to the Yellow Pages survey. I do not think anybody in this place would be surprised that we are not convinced about what Minister Reith has said in his second reading speech on further evidence supporting his case because it simply is not there—the evidence does not exist.

The other concern we have with this legislation is the arbitrary nature of only exempting small businesses with 15 or fewer employees. In his second reading speech, Minister Reith said that this size of small businesses was chosen because of the precedent provided by the Employment Protection Act 1982 in New South Wales, which was introduced by the Wran government and followed by the then Australian Conciliation and Arbitration Commission in the 1984 termination, change and redundancy test case.

This was addressed by the committee. It was addressed last time we debated this legislation. We drew on the international comparisons—and I think Sri Lanka was the only country anywhere near this sort of benchmark. In fact, as I said earlier, South Korea looks extremely generous in comparison. I would like to refer back to a point made in the Labor members' report on the committee hearings on that issue. We commented on the examples used for this benchmark of 15 or fewer employees. With respect to the examples used, we said:

The Wran Labor government's employment protection act and the commission's decision on the right to redundancy pay can be clearly distinguished from the present case. In both those instances, new employment rights were being introduced for the first time. The decision was made not to extend them at that time to employees of small businesses (as it has transpired on most occasions, the commission has revisited the redundancy decision. On an industry basis, it has removed the arbitrary exclusion). In contrast, the present case involves an attempt to remove existing rights by reference to an arbitrary measure.

This legislation is about a mean attempt to remove the existing rights of employees working in small businesses. The week before last, the standing that the Australian government currently has internationally in relation to the Workplace Relations Act was highlighted. Add this one as well and you make us look like an absolute international basket case.


Senator Ian Campbell —Did you say a banana republic?


Senator JACINTA COLLINS —No, I said a basket case. Obviously, senators on the other side are very sensitive to that suggestion—and they should be. Anybody who has any understanding of the nature of exemptions and the application of international law knows that exemptions are things that you are meant to move away from over time, not reintroduce. We have no history of introducing exemptions of this nature—none at all. But again, that characterises the current government and its approach to a fair go all round. I do not remember a rider on the promise of a fair go all round that said `except if you happen to work for a business which has 15 or fewer employees'. I do not remember the Prime Minister making that point.


Senator Ian Campbell —It was Neville Wran, not the Prime Minister.


Senator JACINTA COLLINS —I was talking about the misrepresentations in Minister Reith's second reading speech. Members of the government have continued the misrepresentation of what is really involved here.

Senator Ian Campbell interjecting


Senator JACINTA COLLINS —The misrepresentation has been that it is fine to introduce this exemption because other rights exist—people have access to other mechanisms.

Senator Ian Campbell interjecting


The ACTING DEPUTY PRESIDENT (Senator Ferguson) —Order! Senator Campbell, Senator Collins has the call. You will cease interjecting.


Senator JACINTA COLLINS —I am hoping that Senator Campbell will make a contribution in this debate. I was quite pleased when I saw on the speakers list that Senator Alston is actually going to make a contribution. I dearly hope that that will be the case, as my recollection is that on the last occasion he avoided doing so. Given that this piece of legislation has such significance to the government and its political agenda, I invite Senator Campbell to speak to the legislation when it is his turn—and, in fact, I look forward to it.

Moving back to the point about the misrepresentations that have been made, particularly in the debate in the other place, those misrepresentations were that it is okay to remove employees' rights in relation to unfair dismissal because they still have access to rights in relation to unlawful termination. Unfortunately, that supposed protection is a myth. It is a myth because of the sorts of examples that Mr McMullan raised in his speech in the other place. Let me give one example of that in this place. I liked this example most particularly.

The example was: if you are a pregnant woman and you work for a business with 15 or fewer employees, you are fine because, if you were terminated, that would be discrimination and you would have access to unlawful termination. However, if you were the boss of that pregnant woman and you refused to sack her, you have no protection if you were sacked and that was unfair or unreasonable behaviour because you are the sucker who works for a business with 15 or fewer employees. That example is just absolutely ludicrous, but true and real. Senator Campbell's boss has no idea of the number of those sorts of cases that really do occur.


Senator Ian Campbell —Those 50,000 people would like jobs except for you people.


Senator JACINTA COLLINS —Senator Campbell interjects that, if we can sack people under those circumstances, we can create 50,000 jobs. So it is okay to introduce injustice because it is going to create 50,000 jobs that the government cannot even demonstrate will be created.


Senator Ian Campbell —You kept unemployment at the highest levels in Australia's postwar history.


Senator JACINTA COLLINS —There is no demonstration, apart from the bold claim by Mr Bastian—


Senator Ian Campbell —World record unemployment your party. Highest levels of unemployment in history for over 13 years.


Senator JACINTA COLLINS —There is no demonstration that more jobs will be created. Absolutely no demonstration.


The ACTING DEPUTY PRESIDENT (Senator Ferguson) —Order! Senator Campbell, you will cease interjecting please.


Senator JACINTA COLLINS —Absolutely no demonstration and absolutely no evidence. I wonder why Senator Campbell is so sensitive on this issue. Has he had a bad morning this morning? What is the reason for his ridiculous behaviour?


Senator Ian Campbell —I would like to see unemployment reduced in Australia. You want to keep unemployment higher.


Senator JACINTA COLLINS —Senator Campbell, I look forward to you making a contribution in this debate and actually demonstrating it.


The ACTING DEPUTY PRESIDENT —Order! Senator Collins, address your remarks through the chair please.


Senator JACINTA COLLINS —I apologise for that, Mr Acting Deputy President. Through you I say I look forward to the government actually demonstrating that case. As you are aware, we have been pursuing for, good heavens, it must be around 18 months now the case that Senator Campbell sits there and claims exists, but the government has not been able to demonstrate it. The case is not demonstrated in Mr Reith's second reading speech. It is a just a bold claim represented by Mr Rob Bastian. That is the case. That is the extent of the case. There is no case. This legislation represents a mean and politically cynical double dissolution trigger. That is what it is about.


Senator Ian Campbell —Stick up for your union mates!


Senator JACINTA COLLINS —Senator Campbell interjects that I should stick up for my union mates. The point I will make in conclusion on this debate is, yes, that is exactly what I am doing.


Senator Ian Campbell —Declare your interest.


Senator JACINTA COLLINS —I am doing it because, yes, I do have an interest. I have an interest in representing more than 200,000 retail employees. Most of them work for small businesses and most of them rely desperately on their rights to secure employment. Ironically, these unions actually represent a vast number of non-union members in their entitlements in relation to unfair dismiss al. In fact, they probably represent more non-union members than union members. We are concerned about those rights being removed as well, Senator Campbell.