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Monday, 14 August 2000
Page: 16181


Senator GEORGE CAMPBELL (1:09 PM) —It is very difficult to get serious about this debate in this chamber knowing full well that the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 is back not because of any genuine or serious concern by the government to deal with pressing problems in the community, business or industry, where wrongful dismissal laws are causing major problems in the workplace, but essentially because this government is going through a process of political positioning in order to open up as many fronts as possible and as many election strategies as possible that may be available to it in the next couple of years. Senator Murray outlined a range of what those options might be, and I do not want to go through and repeat them. But let us observe what might be coming down the road, when small businesses, in particular, at the end of October or early November, have to start putting in their business activity statements and making the first payments on the pay-as-you-go taxation under the new tax reform act—under the GST. When they start to run into major cash flow problems, small businesses are going to have a lot more concerns about those issues than they are about the issue of whether or not they have the right to terminate the employment of their employees. The fact that this legislation is back before this chamber has more to do with that sort of political scenario than with the legitimacy of what is happening in the working environment.

Let us look at a bit of the history of unfair dismissals and why the topic keeps bobbing up as a major issue. It is true that the Keating government introduced legislation between 1993 and 1996 to expand the access of employees in the federal jurisdiction to pursuing unfair dismissal claims. There are a number of categories of employees who were covered by that specific legislation. But all it did in that process was extend to some classes of employees under the federal jurisdiction what had already been in existence in most of the state jurisdictions for 20 to 30 years previously. In New South Wales, Western Australia, South Australia and Queensland employees always had access to pursuing unfair dismissal claims in the state jurisdiction. All that occurred through that legislation in 1993 or 1994 was the extension of that right, that entitlement as an employee, into certain classes of employees in the federal jurisdiction.

The reaction and response from employer organisations verged on the bizarre over that period. I have been involved in the industrial relations environment for a very long time, stretching back into the mid-1960s. Maybe I should not be giving hints about my age, but it goes back as far as that—a little bit beyond it even. It is the only time in my 30-odd years of experience in the industrial relations field, particularly as a practitioner, that I have seen the employer organisations actually run an effective campaign. ACCI, the Australian Chamber of Commerce and Industry, ran a very effective campaign in opposition to the unfair dismissal laws. They frightened the living daylights out of small business proprietors all around this country about what dastardly acts, deeds and problems they were going to be confronted with if this law was enacted. The reality is that we have experienced nowhere near the problems that were anticipated by the ACCI. Those sorts of problems have not emerged. It is true that the number of claims went up; it is true, as is always the case in these circumstances, that the legal profession, which is well and truly represented on the other side of this chamber and in the lower house, made a motser out of the system—drove a lot of the claims into a quasi-legal environment with quasi-legal arguments. Instead of allowing the issues, which were essentially, in most cases, industrial relations type issues, to be resolved within the purview of the Industrial Relations Commission, in those areas they drove those claims into the legal jurisdiction. I know of a number of instances where members of my own union came to see the union about some of these unfair dismissal claims and said that legal representatives had said not to settle but to pursue the case in a higher court. The legal representatives said, `We'll get a better settlement for you down the line and it won't cost you a zack because we'll do it on a no-win, no-pay basis.' We know a lot of that goes on in the legal profession in a range of these areas.

When I was a union official, I had a number of discussions with the then president of the commission about the ways that sort of approach could be circumvented and the traditional commission processes brought to bear in helping to resolve a lot of these issues rather than allowing workers to fall into what many regarded as the hands of the philistines when pursuing their claims under this particular legislation.

It is true that prior to 1996 this government made a major issue of the unfair dismissal laws, following the response it saw ACCI getting from the small employer sector of our economy, and it ran pretty hard on the unfair dismissal laws. But it is also worth drawing the attention of this chamber and the Australian people to what the Prime Minister and Peter Reith, the minister for industrial relations, said after they got some changes through the parliament after the 1996 election. In a ministerial statement in response to the Bell report on 24 March 1997, John Howard said, `We have swept away Labor's job destroying unfair dismissal laws.' In a speech on the return of the bill from the Senate on 21 November 1996, the Minister for Employment, Workplace Relations and Small Business, Peter Reith, said, `We have delivered a workable system for dealing with unfair dismissal.' That was their description of the current laws. If John Howard believes that the government `swept away the job destroying unfair dismissal laws of the previous Labor government,' and that it has delivered `a workable system', why have we seen this bill back in here on three occasions now? Is it because there is a major problem occurring out there in industry? Is it because small businesses are knocking at the door of Parliament House seeking this change? No, it is not. It is simply for the purposes of allowing this government to run a rhetorical campaign to try to demonstrate to the small business community that `We're doing something about protecting your interests,' when it knows it is doing nothing at all.

You will recall the campaign when Peter Reith became minister for small business. The government was going to cut red tape for small business by 50 per cent. When we asked representatives of the Department of Employment, Workplace Relations and Small Business at Senate estimates how they were going to do this, they said, `We don't know.' When we asked them how they were going to measure this 50 per cent, they had no idea. Again, they were rhetorical statements for which this minister is famous. When you deal with Peter Reith, you will learn very quickly to separate the rhetoric from the substance—you will always find that he is long on rhetoric and very short on substance. If you were to look back through his political career, you would not have to go very far to see those constant threads running through.

A couple of aspects of this bill are bizarre, and the worst one is not the exemption of workplaces with fewer than 15 employees—although, from what I understand of the Australian economy, that would just about exempt 80 per cent of the workplaces. Setting that aside, it is a provision in the bill to establish a six-month probation period for all new employees before they can access the unfair dismissal system. In many sets of circumstances, that is meant to facilitate a turnover of employees. We all know that, even with the simplest of jobs, it probably takes two or three weeks for a new employee to find their feet—to find their way around the factory or to find their way around the department store or wherever, before they are able to give some return on the organisation's investment. After two, three or four months, that investment would be returned and, after six months, the employee would be regarded as being virtually permanent and would have accrued some rights within the workplace. I have to say that, if you give a six-month exemption period, there will be the greatest turnover of labour occurring in this country that you have ever seen. We think job insecurity is a major issue of concern for people in the work force at the present moment. It is: people are concerned about the security of their jobs; they are concerned about the security of their factories; and they are concerned about whether their workplaces will exist in 12-months time. If this legislation is put in place, you will have not just an insecure work force but a work force that is operating on terror—they will be terrified that, having worked in an environment for up to six months, they can be summarily dismissed without any justification from the employer as to why they have been deemed to be unsuitable after the six-month period.

Essentially, this bill is about providing trigger mechanisms to the government to open up its election opportunities over the next two or three years. Despite all the rhetoric, there is a considerable degree of nervousness at the other end of this building about what is likely to happen in two or three months time. There are very strong rumours around the Sydney establishment that we could be looking at an election as soon as the end of October or early November and that this is under very serious consideration by this government. When some of the stuff that we know is happening out there starts to feed through into the political process, you would have to say that keeping all his options open is a pretty smart position for the Prime Minister to take, because it may be a question of his having to go sooner rather than later to have any chance at all of the people on the other side retaining the Treasury benches.

The irony of all of this is that once again we see ordinary workers, who are battling for survival and battling to maintain the employment they have and are anxious to ensure they retain their jobs and the capacity to feed, educate and look after their families, being subjected to what will again be seen as a fear and intimidation campaign by this government. They will be subjected to rhetorical arguments which have no substance in terms of any real beneficial change in industry or in enterprises but which are being used to talk up the election chances of this government within the small business community. When the small business community starts to feel the impact of the application of the GST, the impact of having to return the business activity statements and the impact on their cash flow of meeting the payments under the pay-as-you-go taxation system they are now confronted with, it is going to take more than the unfair dismissal legislation being promoted by this government to save the government's hide in the small business community—if it has not already reached the point in time where it is beyond saving. As I said in my opening comments, it is hard to get serious about this discussion in this chamber, because we know that this legislation is not here for a serious purpose; it is here for one purpose only, and that is about opening up opportunities to enhance this government's election prospects in the future.