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Monday, 14 August 2000
Page: 16175


Senator MURRAY (12:44 PM) —I will refer listeners and those who are interested in this debate to the Hansard record of the previous debates on this matter. It covers many of the arguments which do not need to be recapped. I will also refer interested persons to my minority report of February 1999 to the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 which still provides the backbone of the Australian Democrats' opinion on this matter.

Thirdly, I would ask an attendant to collect from me for distribution to the chamber a graph and some figures I have on federal unfair dismissal cases which later, once senators have had a chance to examine them, I will seek leave to have incorporated into the record. This is the third time Minister Peter Reith has brought this bill to the Senate. We rejected it in 1997 and in 1998. We will reject it again today for the third time, and I expect when it returns in three months we will reject it a fourth time. I expect the bill will be rejected a fourth time in three months because we think that this bill is Minister Reith wasting the Senate's time to establish a double dissolution trigger. The government wants to be in a position to threaten Labor and the Democrats with a double dissolution election. The Democrats were not cowed on Telstra, we were not cowed on Wik and we were not cowed by this bill last time. We will never be cowed by any threats of a double dissolution.

Having said that, it is obviously good housekeeping for the government to have a double dissolution trigger in the bottom drawer. This is particularly necessary because, if they have an election before 1 July next year, it must be either a double dissolution election or a House of Representatives only election. The latter option has not happened in Australia since 1972. I am sure the government would not want to use that election as a precedent, given that it involved the election of the opposition, which became a Labor government. So if the Prime Minister wants the option of calling an election before 1 July next year it must be a double dissolution election. This bill, and perhaps a few more like it, will provide a trigger. I do not think there is serious disagreement between the two houses on this bill because I do not think the government are terribly serious about this bill. It is a legal contrivance to create a double dissolution trigger. They cannot be terribly serious because they know the thoughts and views of the Senate on this matter. Since the matter was last raised, the composition of the Senate has not changed to a degree whereby this bill would have any serious chance of success.

Turning to a double dissolution, there are three problems with having a double dissolution election in the first six months next year. First, under the Constitution the terms of senators will have to be backdated to 1 July 2000. That would mean that the next federal election would need to be held within two years, not three—by May 2003—to elect half the Senate. So the government, if they chose to go early, would only gain a two-year term out of it. I am sure the Prime Minister's successor would not be very pleased with that prospect.

Second, it also means that the Prime Minister and other ministers with an eye for history fail to get to re-enact the 100th anniversary of the first federal parliament, set down from 9 May to 10 May next year. May the 9th also happens to be the last day on which a double dissolution election can be called. So it is either re-election or the re-enactment. Thirdly, the government would have to get re-elected. Going to an election six to eight months early for a maximum two-year term is likely to test the patience of the Australian population. Indeed, the only double dissolution in the first six months of the year in the last half century was in 1983, and that was an election that the Liberals lost.

With regard to this bill, is there a major dispute between the Senate and the House of Representatives? In the term of this parliament, the Senate has passed 305 bills presented by the government, 75 of which were amended, including its biggest policy items of tax reform. The Senate has rejected only five bills—this will be the sixth—and passed only one with amendments that the House would not agree with. There are seven other bills where the House has yet to advise the Senate as to whether Senate amendments have been agreed to. To put that in perspective, the Senate has passed 98 per cent of the bills presented to it by the House. This is hardly the basis to argue Senate obstructionism, although I must say to the government that their constant harping in the past on Senate obstructionism has resonated with some of the population, who still seem to believe that it is possible for the Democrats or Labor on their own to block bills. In short, the bill is little more than a political stunt. It is about providing the government with the option of a double dissolution election for early next year, an option that I would describe as a suicide option. I doubt this government will be foolish enough to take it.

Having dealt with the real motive of this bill—and we must bear in mind that the minister moving the bill is also the Manager of Government Business and therefore has a real eye on political matters—I will now deal with the actual subject matter of the bill. The bill seeks to deny employees the right to challenge an unfair dismissal if they work for a small business. It sets up employees of small business as second-class citizens, denied the right available to other workers to challenge unfair treatment. It seeks to set a precedent for the states to follow where under their legislation nearly all unfair dismissals occur, particularly nearly all unfair dismissals in small business.

The Democrats see this as a fundamental justice issue, an issue of workplace justice. Just because unfair dismissal occurs in a small business does not make it any more fair. Being unfairly sacked is unfair, irrespective of whether the employer is large or small. This government promised a fair go all round on unfair dismissals. Where is the fair go in saying that the 2.7 million employees under federal and, mostly, under state legislation who happen to work in small businesses, 44 per cent of the private sector work force, are second-class citizens where the fair go only flows to the employer, not to the employee? The government claims that this measure is an employment measure, that it is designed to fix the problem with unfair dismissals for small business. I ask: what is the problem and where is the evidence that the problem is preventing small business employment growth? Once again, I would refer the Senate to my minority report which deals with that issue at length.

In the last two years, small business employment has grown by 246,000 jobs or 10.1 per cent. Big business employment in the same period grew by just 5.6 per cent, which is half the rate of small business employment. Further, as Senator Collins clearly outlined, the evidence from Queensland, where this exemption under the laws of the previous government was trialled by small business for a period, is that small business employment did not take off at all. So where is the evidence that the law is preventing small business employment growth?

The Democrats acknowledge that the 1994 Brereton changes to unfair dismissal laws—that is the Labor laws—caused a lot of concern for small business. Unfair dismissal applications skyrocketed to over 21,000 both state and federally in 1996, or 2.57 unfair dismissal claims for every 1,000 employees; but since then it has dropped off sharply. In 1999 applications under the federal act were just half those for 1996, before the Workplace Relations Act. Even when the state applications are taken into account, applications nationally are down 29 per cent on 1996, and there are now 1.74 unfair dismissal claims per 1,000 employees in Australia, which is down from 2.57 three years ago.

Madam Acting Deputy President, I seek leave to incorporate in Hansard the graph and the tables circulated in my name.

Leave granted.

The documents read as followed

Federal Unfair Dismissal Cases

Unfair Dismissal Cases : Australia Source: Department of Industrial Relations

2000

1999

1998

1997

1996

1995

1994

Jan

535

418

492

354

1511

625

Feb

705

618

709

551

1305

613

March

755

820

708

547

1235

786

April

563

666

592

1148

690

1

May

681

597

644

1298

1096

121

June

685

700

533

1207

986

330

July

658

687

712

1427

963

252

Aug

630

609

557

1282

1087

462

Sept

550

682

591

1120

924

440

Oct

539

661

979

1206

1049

373

Nov

634

744

611

1138

1087

703

Dec

745

882

791

1206

830

487

TOTAL

1995

7541

8137

74621

15083

10736

3169

The Coalition's Workplace Relations Act commenced 1/1/97, and was passed after amendment by the Democrats.

Moving Annual Total

Mar-95

5193

Apr-95

5882

May-95

6857

Jun-95

7513

Jul-95

8224

Aug-95

8849

Sep-95

9333

Oct-95

10009

Nov-95

10393

Dec-95

10736

Jan-96

11622

Feb-96

12314

Mar-96

12763

Apr-96

13221

May-96

13423

Jun-96

13644

Jul-96

14108

Aug-96

14303

Sep-96

14499

Oct-96

14656

Nov-96

14707

Dec-96

15083

Jan-97

13926

Feb-97

13172

Mar-97

12484

Apr-97

11928

May-97

11274

Jun-97

10600

Jul-97

9885

Aug-97

9160

Sep-97

8631

Oct-97

8404

Nov-97

7877

Dec-97

7462

Jan-98

7600

Feb-98

7758

Mar-98

7919

Apr-98

7993

May-98

7946

Jun-98

8113

Jut-98

8088

Aug-98

8140

Sep-98

8231

Oct-98

7913

Nov-98

8046

Dec-98

8137

Jan-99

8063

Feb-99

7972

Mar-99

8084

Apr-99

7981

May-99

8065

Jun-99

8050

Jul-99

8021

Aug-99

8042

Sep-99

7910

Oct-99

7788

Nov-99

7678

Dec-99

7541

Jan-00

7658

Feb-00

7745

Mar-00

7680


Senator MURRAY —I thank the Senate. I would remind the Senate that those are all federal unfair dismissal cases—not just small business. In short, the reforms in the 1996 Workplace Relations Act—the fair go all round legislation—fixed the unfair dismissal process problems that existed under Labor's law. The bias towards most of the legalistic process that was proving such a boon for unscrupulous employees in the 1994 act was removed. It is worth highlighting very briefly some of the changes in the 1996 act that redressed the balance. Most important was the change in onus of proof. No longer did an employer have to prove a valid reason to dismiss an employee. An employee now has to prove that the dismissal was unfair. That is the same rule that applies in the state tribunals. Hearings were moved from the legalistic Federal Court to the more practical and commonsense Australian Industrial Relations Commission, which has resulted in less haggling for legal process and procedural fairness. Vexatious applications were discouraged with a $50 application fee, a limited threat of costs awards, and the requirement for the commission to give assessments after conciliation. And if damages are to be awarded, the viability of the small business employer needs to be considered.

Of the cases that have gone to the commission, 22 per cent were withdrawn or dismissed before conciliation; 70 per cent were settled either at the conciliation phase or before arbitration; and only eight per cent were either arbitrated or were awaiting arbitration. Of those that were arbitrated, 63 per cent were decided in favour of the employee and 37 per cent in favour of the employer. That is hardly evidence of a system out of control. If anything, it is evidence of a system delivering a fair go all round. However, I will acknowledge to the Senate that the Democrats have recognised that there are still process issues and process problems attached to the unfair dismissal applications, and we have recommended that the process area be further reviewed for some minor reforms.

It is also worth noting that 34 per cent of all unfair dismissal applications are from small business employers, which is almost identical to the small business 35 per cent share of the total work force. In short, there is no evidence that legislation is adversely affecting small business, adversely affecting small business employment growth, or that it is particularly clogged. The problems that small business had with the 1994 act were fixed by the 1996 act, which was agreed to between the coalition and the Democrats. That was a fair deal and one which Minister Peter Reith should stick to. There is no good case now to attempt to deny small business employees who fall under the federal legislation and the majority of small business employees who fall under state legislation—2.7 million altogether—the right to an unfair dismissal application when small business employment growth is running at almost twice the rate of big business employment growth.

In our view, this legislation should be rejected as harsh, unfair, unnecessary, unbalanced and unjustified. The Democrats will vote the bill down and we will keep voting it down because the government has not made out its case for it. We will also vote it down because it offends a fundamental principle that all Australians should have the same rights, the same freedoms and the same responsibilities. This bill seeks to differentiate between classes of Australians; it also seeks to differentiate between not only large and small businesses but between state and federal jurisdiction. That principle is utterly wrong. Whether it is to do with unfair dismissals, sexual congress or mandatory sentencing, it is wrong. Australians should enjoy the same rights, the same freedoms and the same responsibilities wherever they are.