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Wednesday, 25 March 1998
Page: 1220


Senator SHERRY (9:56 AM) —When the Howard Liberal-National party government was elected in March of 1996 it declared in respect of federal termination laws that it intended to ensure the provision of a fair go all around. In my contribution to this debate on the Workplace Relations Amendment Bill 1997 [No. 2] I intend to deal with the issue of whether the legislation we have before us presents a fair go all around for every Australian worker. Before I do that there are two other issues I want to raise in the context of this legislation.

The legislation provides that a small business employer who employs fewer than 15 employees as defined in the bill will be exempt from the unfair dismissal laws. In fact, it represents an attempt to exclude employees who are unfairly dismissed from an employer who employs more than 15 employees because, when you include casual employees in the definition of 15 employees in the act, you exclude casuals who have been regularly employed for fewer than 12 months.

There are many employers in this country with a substantial proportion of their work force who are casual employees who have worked for fewer than 12 months. Certainly in the hospitality industry, which I have some working knowledge of, there would be many employers employing 20, 30 or 40 employees who, because of the definition of `a casual' within this bill, would be excluded for the purposes of unfair dismissal.

A second very important practical issue that I want to raise is in respect of employers who are covered by federal awards and are also covered by state awards. Of course, the legislation that we have before us will apply in respect of federal legislation; it will not apply in respect of state legislation. There are many workplaces in that situation. We will have an absurd position where some employees in a small business are covered by a federal award cannot seek redress in the event of an unfair dismissal and some employees at the same business covered by a state award can seek redress in the event of an unfair dismissal. That would be an absolute absurdity. I submit to the Senate that that will be a relatively frequent occurrence.

This bill will establish two sets of employees in this country. If you work for an employer who employs more than 15 employees, as defined, you have a basic set of rights. If you believe that your termination was harsh, unfair or unjust, you have the ability to lay your case before an independent tribunal to determine whether in fact you have been harshly, unfairly or unjustly dealt with. But it will create a second class of employees. Those who work for small businesses, as defined, will have no fundamental right, no matter how harshly they have been dealt with by an employer, to have the facts of their case examined by a tribunal to determine whether they have been harshly, or unfairly or unjustly dealt with.

This creates two sets of principles in law. It protects employees, or gives them the capacity to be protected, if they work for an employer who employs more than 15 employees, but it removes any effective protection if you are dismissed from the services of an employer who is a small business employer. You have no right in law to have your case considered at all. This is quite an extraordinary approach to human rights as we know them in Australia. I submit that it does not fit the government's definition—certainly not Mr Howard's or Mr Reith's definition—of a fair go all round.

It is not as though the matter of unfair dismissals has not been considered by the Senate before. In May 1996, the then minister Mr Reith put before the parliament a new set of industrial relations legislation. That was ultimately passed and enacted into law on 31 December 1996. There was major debate in the Senate chamber about that legislation. Significant changes were made with respect to unfair dismissals at that time. Without going into all the details of the significant changes, the definition of fairness was changed. Before awarding a remedy, if any, to an employee, account had to be taken of the ongoing interests of all the parties. There was a rebalancing of the statutory test to ensure that procedural fairness is only one factor when determining whether a dismissal is unfair.

Secondly, there were separate streams for handling unfair and unlawful dismissals. The power of the Australian Industrial Relations Commission to award costs against employees was dramatically increased and was coupled with a compulsory conciliation stage. A $50 filing fee was introduced. The new act, while retaining the expression `harsh, unjust or unreasonable' in relation to unfair dismissals, went on to confine the operation of federal statute to a narrower field.

When this act was passed at the end of 1996, Mr Reith was triumphant about the changes that were to apply with respect to unfair dismissal. He said at that time that this was a magnificent example. I am not quoting him, but he was triumphant in hallooing the great negotiating skills and the great processes he had gone through to reform Australia's industrial relations laws. I suspect that it also had something to do with the fact that he wants to be a future Prime Minister—we hope, Leader of the Opposition—of this country that he engaged in such dramatic grandstanding at the time. But here we are, a year on, re-examining the very laws that Mr Reith was so triumphant about just over one year ago.

During this debate, at various times not only Mr Reith but also Senator Alston—who is handling this matter in the Senate—accused Labor senators of having a vested interest because a number of us happen to have been former union officials before we entered politics.


Senator O'Chee —Very touchy, aren't you?


Senator SHERRY —I am not touchy about it. In fact, I am proud of it Senator O'Chee. I am proud of the occupation I had before I entered this parliament. Labor does not make a habit of belittling the former occupations of members of the parliament. Frankly, I think it is largely irrelevant. I do not choose to draw to the attention of this chamber that there are many members of the Liberal-National Party who are farmers and belittle them because they were farmers and belittle their contribution on primary industry, for example. I think that they bring a level of expertise and knowledge that is worth while having in the contribution to debates in this chamber. So I do not belittle the former occupations of senators in this chamber.

I say again for the record that I am proud to have been a trade union official. Many of my colleagues in this place are former trade union officials—for example, Senator Collins, Senator Conroy and Senator Cook. We are proud of our background and the contribution that we have made with respect to representing workers in this country in our former occupations. It is in this context that I will read to the Senate a list of wrongful dismissal cases that I handled when I was a former trade union official. It is only a summary of a small number of cases that I handled over a number of years which involved wrongful dismissal.

The cases included: the dismissal of an employee for eating a sweet from a burst packet of sweets—it was spillage, and she was dismissed for theft; the termination of the employment of an employee of long standing because the employer wanted to employ a family friend; the dismissal of an employee whilst on sick leave for quite a serious illness that had been certified by a doctor; the dismissal of a number of regular, longstanding casual employees working as room attendants, some for eight or nine years, with no reason given; the dismissal of a bottle shop attendant, with no reason given—in fact, what was incredible about this case is that the bottle shop attendant read about his termination in the newspaper when he saw his position advertised in the jobs vacant section before he was dismissed; the termination of an employee because she would not have sex with the manager; the dismissal of a club bar steward because a new committee of management was elected and the new president did not like the bar steward so he decided to sack him; the dismissal of a green keeper because he was too old at 58, despite the fact that there were never any complaints made about his work and he was never counselled, guided or warned.

What do these eight or nine cases that I have personally been involved in have in common? They were all cases that involved a small employer where there were less than 15 employees as defined by this bill. I do not think there would be a senator in this place, including in the government, who would believe that the circumstances of the terminations in the cases I have just referred to were reasonable. Certainly, I do not think there would be a senator who would argue that, given the circumstances of these cases, these employees should have been prevented from having the facts of their case determined by an independent tribunal. In the cases that I have outlined briefly to the Senate, all of these employees were re-employed, because it was found that their termination was harsh, unjust and unreasonable. The fact is that these types of cases could not be considered by a tribunal if the bill that we are considering is passed into law.

As I said earlier, I speak with great pride about my background and about my involvement in defending workers who by any judgment have been treated harshly, unfairly and unjustly. For the vast majority of workers in this country it is very important that there are some fundamental protections in law in regard to their employment, their wages and conditions, and the way they are dealt with at the workplace. It is important, because that is all they have. They are totally dependent as employees on their employment.

It seems to me that if we are to uphold the dignity of labour in this country all employees are entitled to a fair go all round. If they believe they have been harshly, unfairly and unjustly dealt with, they do have a fundamental human right to be heard in front of a tribunal and for that tribunal to determine whether, given the facts of the case, they should be reinstated, or perhaps some compensation paid.

What type of society is it that Australia is evolving into if we endorse the principle that a person, because they work for a small business, can be sacked, dismissed, with no reason given? If they can be dismissed because the employer wants to employ someone else—a friend or relative—if they can be dismissed because they refuse to have sex with the employer, if they can be dismissed because they are too old, if they can be dismissed because they eat a sweet on the job and that is allegedly theft, what type of society is it that will say that those former employees have no fundamental right to put their case before a tribunal?

I sympathise with the circumstances of small business. There is certainly no-one in the Labor Party who does not sympathise with the difficulties that small business faces. Many small businesses are struggling. It is argued that small business is struggling and the assertion is—and it is an assertion; it is not provable—that in order to encourage employment small businesses should be exempt from the unfair dismissal laws. But this is just an excuse for the failure of this Liberal-National Party government to address many of the fundamental problems that small business faces. Fundamentally, small business is struggling in many sectors not because of the unfair dismissal laws but because they lack consumer demand, they lack customers coming through their shop or buying their goods and services.


Senator Ian Campbell —The best retail sales figures in a decade.


Senator SHERRY —Well, come to Tasmania, Senator Campbell. The reason employers employ people in their business is that they have demand for their goods and services.

Ultimately, if this law is passed at a federal level and it flows into the state jurisdictions—which, I am sure, this government will be anxious to pursue—we will have 2.8 million workers who will have no right at all, no matter how unfair and unjust their dismissal is, to put the facts of the case before an independent tribunal. I submit that this approach is not in the interests of small business.

I know that the vast majority of small businesses are responsible employers. They do the right thing. They treat their employees fairly and reasonably. But, regrettably, there is a very small number of businesses that do not treat their employees fairly when it comes to termination of employment. Is it reasonable to say to the vast majority of small businesses who do treat their employees fairly and reasonably when it comes to termination that the small minority of small businesses who do not behave responsibly should be excluded from the adjudication of a tribunal which should determine whether or not the employees have been treated unfairly or not?

As I said earlier, I am proud of having been a trade union official and I am proud of some of the cases that I have defended and the results I achieved. I am proud of the Australian Labor Party for taking a position in opposition to this legislation. It seems to me that this law will strip 2.8 million workers of a fundamental human right, that is, to be allowed to appeal if they believe they have been harshly dealt with and to be allowed to lay the facts of that appeal before an independent tribunal to determine whether they should be reinstated or whether some compensation should be paid. That is a fundamental right of labour in this country and it should not be taken away. It is about time this government, the Liberal-National Party government, stopped using this sort of issue as an excuse for its failure to assist small business in this country. (Time expired)