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Monday, 14 August 2000
Page: 16173


Senator JACINTA COLLINS (12:31 PM) —The temptation was clear to refer to the Hansard of previous occasions in relation to this particular bill as it is the third occasion on which I will give a second reading contribution on this piece of legislation. It was in an alternative form before the last parliament and is now named the Workplace Relations Amendment (Unfair Dismissals) Bill 1998. Let me remind the Senate, as I am sure others will, that this bill has already been rejected twice by the previous parliament and has been the subject of two inquiries, both of which found the legislation wanting. Comprehensive minority reports by both Labor and, separately, the Democrats indicate clear opposition to the bill.

The minister is well aware from the two minority reports on the February 1999 inquiry that the bill will not be passed. So the minister is either a glutton for punishment or is cynically introducing this bill to give the government a potential election trigger. A number of comments from the minister himself in the press seem to indicate that the minister is either ignorant of Senate procedures or is being duplicitous in relation to his rationale for the introduction of this bill. A newspaper article appearing in the Herald-Sun on Monday, 19 June indicated:

Mr Reith may offer the Democrats a compromise with his new Bill by reducing the size of exempt businesses.

So I ask: has this compromise been made? Where is this compromise? I certainly have not seen it and I have not heard the Democrats refer to it, so I think it may just be another piece of Mr Reith's duplicity or game playing that the Senate is now dealing with.


The PRESIDENT —Senator, I think the word `duplicity' should be removed.


Senator JACINTA COLLINS —I withdraw that comment, Madam President. The question that needs to be raised is: is there an amended bill which deals with issues such as the size of an exempt business, or is there not? The other question that needs to be raised is: where does this bill fit with the Workplace Relations Amendment (Termination of Employment) Bill 2000 which is before the House of Representatives? Does that not represent the government's agenda in relation to termination of employment? If it does and if the minister is still pursuing matters related to the size of a business, then why isn't he pursuing those in the context of the legislation for termination of employment? The reason is fairly clear: the minister is pursuing this legislation as simply a trigger, counting on a rejection at second reading within the Senate. I do not think he will be disappointed.

This government's cynicism in relation to dealing with unfair dismissals and other employment matters is not new. When the government introduced their first attempt to amend the unfair dismissals legislation in 1997, Senator Murray said in his minority report on that occasion:

It remains my belief that the Coalition introduced this single issue Bill encapsulating gross unfairness to provoke the Senate to absolute rejection.

He went on to say:

It remains my belief that this Bill was conceived to achieve a double dissolution trigger. And in that act of creation is exposed the Coalition's utter heartlessness.


Senator McGauran —You are frightened of that. That really scares you.


Senator JACINTA COLLINS —I am glad you join with me in that, Senator. Senator Murray went on:

It would create job insecurity and arbitrarily discriminate against one to two million employees for a political end.


Senator McGauran —That's right, it is a double dissolution trigger. You got it.


Senator JACINTA COLLINS —I am glad that Senator McGauran agrees with me. Senator Murray's concerns about the coalition's heartlessness would appear to apply as much to the government's current ambit as it did in 1997, because the aims of this bill have not really changed. Let me revisit them. The government's unfair dismissals bill seeks to require a six-month qualifying period of employment before new employees other than apprentices and trainees can access an unfair dismissal remedy under the Workplace Relations Act. Let me remind the Senate that Minister Reith does not believe that the independent umpire, the commission, is the appropriate place to determine issues such as periods of probation; he thinks that these things should be written into the act. We disagree with him.

The second aim of the bill is to exclude new employees of small businesses, other than apprentices and trainees, of 15 or fewer employees from the unfair dismissal remedy under the act. That is arbitrary exclusion of businesses with less than 15 employees. Given the debate on this on previous occasions, this is another instance where this government's agenda leaves us sorely embarrassed if you compare industrial relations regimes that apply in other Western industrialised nations. I think we were comparing ourselves to countries that have exemptions for businesses of two or five employees—nowhere near 15—but, no, the minister still wants to pursue this blanket exemption.

As I stated earlier, the government have already tried and failed to introduce these measures on a number of occasions. Regulations to exclude access to unfair dismissal laws by employees with less than 12 months continuous employment or who worked for a business of 15 or fewer employees were also introduced by the minister and then disallowed by the Senate. I think Senator Murray would agree that the minister, if anything, is persistent. The Senate did disallow those regulations. So the government need to pursue their agenda with yet another piece of legislation; but, as I have said, they understand that it is going to be defeated. This piece of legislation has been presented simply to let that occur. If the government were serious about their intentions in relation to termination of employment, this issue would have been encapsulated in the bill currently before the House of Representatives and shortly to land in the Senate—the Workplace Relations Amendment (Termination of Employment) Bill 2000.

Let us address the need for such reform. I issue a brief reminder of the things that are listed quite copiously in various Senate reports to which the government has not responded in any way. The government has responded fairly clumsily on some issues in the Workplace Relations Amendment (Termination of Employment) Bill 2000 but, on my cursory view of it, it has not responded on the matter of small business exemptions. The government continues to deal selectively with the data that is available on this issue to support the claim that there is a need to reduce workers' protection from unfair dismissal, but the evidence does not support such a claim. Both the minister and the department have failed to deal adequately with the findings of the department's own Australian workplace industrial relations survey of 1995. We are still wondering whether they are going to conduct the next survey. Perhaps it reveals embarrassing information that the government does not want to have to deal with.

The AWIRS was conducted in 1995 when Labor's unfair dismissal laws were in operation and when unfair dismissal law had been targeted by the then coalition in a major campaign. In response to a survey which asked, `Why haven't you recruited new employees?' 68 per cent of businesses responded that they did not need any more employees; 33 per cent stated that it was due to insufficient work, lack of demand for their product or low profitability; and unfair dismissal did not rate a mention—but it may have been a fraction of the six per cent response of high employment costs. This hardly indicates that unfair dismissal laws are a burning issue for business.

Another survey in the AWIRS specifically asked small business, `Why haven't you recruited more employees?' Only six per cent of respondents mentioned high employment costs. In a third survey, small business was asked, `What, if any, significant efficiency change would you like to make at your workplace but are unable to?' The leading responses were to improve or change buildings and equipment—21 per cent; improve technology—16 per cent; change staff numbers—nine per cent; increase productivity—seven per cent; have an enterprise agreement—seven per cent; abolish penalty rates—seven per cent; and other significant efficiency changes—20 per cent. The response `change unfair dismissal laws' was provided by only six per cent of the small business respondents.

The most relevant piece of AWIRS 1995 survey evidence, which was unpublished under the current government but reported in an ACCIRT reference, was a survey into the reasons for not recruiting employees during the previous 12 months. Some 66.2 per cent of small business respondents indicated that they did not need any more employees. Twenty-three per cent listed insufficient work as the major impediment. Only 0.9 per cent of respondents nominated that they had not recruited employees due to unfair dismissal legislation.

On reviewing the previous report, the reference to the data that stuck in my mind most was a reference made by Senator Murray. He said that the Queensland experiment had failed. The claims by COSBOA, ACCI and the government that employment would be generated by these measures were blatantly false. The experiment conducted in Queensland, with the exemption that was put in place and later withdrawn, showed no change in the generation of employment. The government has to face the fact that its experiment in Queensland has failed. So why on earth would we extend it federally?

This government has already gone too far in relation to unfair dismissal matters. The government has already implemented measures that make it more difficult for employees to seek remedies for unfair dismissal. To go further is totally unfair and unnecessary. There are a number of limitations within current provisions. Most significantly, the onus of proof has changed so that the employee must prove that they have been subjected to unfair, harsh or unjust treatment in the dismissal process. While costs have been reduced for applicants by having hearings in the commission rather than in the Federal Court, costs may now be awarded against the employee if it is considered that the claim was vexatious or frivolous. The commission is required to assess not only whether an employee has been dealt with unfairly or unjustly, but also whether or not the employer is able to viably deal with any costs or award of damages. Probationary employees and employees on term contracts are denied access to unfair dismissal laws and casual employees cannot access the legislation unless they have been employed for a 12-month period.

Now the government seeks to go even further, despite the fact that Mr Reith stated in 1996 that `we have delivered a workable system for dealing with unfair dismissal'. With respect, the minister cannot have his cake and eat it too. The old reference by Mr Howard that `no employee will be worse off' needs to be put in this context. The government's industrial relations reforms have been based around a guarantee that no worker will be worse off. This is looking more and more like a non-core promise. This bill clearly discriminates against workers employed by small businesses and workers who have been employed for a period of less than six months. It may not be retrospective in its application but, given the transferral rates that occur within the work force and the number of people in the work force who move around between small businesses, obviously we are affecting current rights which affect workers who are likely to be engaged by small business. I therefore indicate that the Labor Party will be opposing this legislation at its second reading.