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Monday, 14 August 2000
Page: 16184


Senator HOGG (1:24 PM) —Following on from my colleague Senator George Campbell, I point out that I myself had the experience of being a trade union official for some 20 years. One of the interesting things I found during that period of time was that there were very few, if any, dismissals that found their way to the commission for arbitration. That was in the state system which I am very familiar with in Queensland. Most of the dismissals, whether they were by large or small employers, were invariably settled by way of discussion with the employer and appealing to good sense and good reason as to why the employee had been unfairly and unjustly dismissed. Those matters were resolved at that level. There were occasions when matters went to conciliation hearings before the Industrial Commission and, with the guidance of the Industrial Commission, those matters were resolved. On the few occasions that those matters were not resolved, arbitration was resorted to and then one copped the decision of the industrial tribunal.

But none of that in any way impaired the rights of employees to seek redress for unjust, unfair, harsh and oppressive dismissal. That right was not denied to them at all. As Senator George Campbell outlined, the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 seeks to do that—it seeks to withdraw a fundamental right that should be, must be, available to ordinary people at their place of work in Australia. The one thing that is fundamental to people is that they have a right to security in employment as an element in retaining their personal dignity. If security in employment cannot in any way be guaranteed, people lose their dignity. One thing this legislation does is remove from people their basic right to challenge unfair, harsh, oppressive and unreasonable dismissal by the employer. As my colleague Senator George Campbell said, this piece of legislation has no basis other than it may down the track provide this government with a double dissolution trigger. That, and that alone, is a very cynical approach to the dignity of people, particularly the dignity of people in the work force in Australia. There is no logical basis to this bill again coming back to this chamber.

If one looks at the bill one sees that it gives no right to employees in their first six months. As my colleague espoused, all we will see as a result of this is a churning of the labour force because the employers will have firmly in their minds the expectation that, if they do not get rid of the employee by the end of the six-month period, they are open to the employee, if dismissed after the six-month period, pursuing a claim for dismissal in the appropriate industrial tribunal. One might say that there is no real precedent for this, but my memory takes me back almost 20 years when there was an employment program that guaranteed a certain additional privilege to the employer for employing an unemployed person for a period of up to six months. The strange thing about that particular scheme—the `sweet pea' scheme, as it was called, the SYETP scheme—was that we invariably found that, at the end of the six-month period, lo and behold, the employee was dismissed. Surprise, surprise: the employer found some fault. Sometimes it was major, sometimes it was minor, but invariably, in the last few weeks of employment, the employer set about constructing a case whereby they could no longer extend that person's employment and reasonably employ them in the wake of the training they had received. Then they moved on to another new employee. There was a churning process. It was absolutely and patently obvious that employers were prepared to exploit that scheme whilst it was a training scheme to ensure that they kept their options open for getting low paid and, of course, in that case subsidised employees.

I put to you that in this particular case it will be no different: come the end of five months, you will find employers—surprise, surprise—finding that the employees in question are either lazy, indolent or abusive. They will find something wrong with them—they do not look the right way, talk the right way or walk the right way. It will be nothing necessarily of substance but it will act purely and simply as the trigger for the dismissal of those employees. Of course, under this proposed legislation, those employees would have no rights whatsoever—that is in major companies; we are not talking about small companies, we are talking about large and small alike—and no opportunity to maintain their security of employment purely and simply because of this piece of legislation.

It gets worse when you get to the situation where there are no more than 15 employees working for a particular employer. There is no rhyme nor reason why the number 15 should have been chosen or could have been chosen; it is purely and simply an arbitrary number. Why, based on an arbitrary number, those people should have their rights dismissed not only for six months but forever is completely beyond me. If one goes to the explanatory memorandum of this bill, one finds that there is an attempt to clarify the choice of 15 for the number of employees. I noticed that in the minister's second reading speech he said that this was an attempt to overcome some of the previous difficulties of this bill. I do not think it overcomes the difficulties at all, because if you look at point 9, where it is referring to the 15 employees, you will see it says:

Firstly, for the removal of doubt, the subsection will provide that the employee whose employment was terminated is to be counted.

Big deal! It says:

Secondly, the new subsection will provide that any casual employee is not to be counted, unless that employee has been engaged on a regular and systematic basis for a sequence of periods of employment of at least 12 months (that is, the employee had been engaged on a regular and systematic basis at least 12 months before the time at which the employees are counted, and the employee was still engaged on a regular and systematic basis at the time at which the employees are counted).

We are going to have people with their abacuses out trying to work out how many employees there are in the place and whether the casuals are, in effect, going to be counted. If they are not regular and are not working on a regular and systematic basis, the real likelihood will be—no, the fact will be—that they will not be counted. So immediately we start to go to a number beyond 15, because the 15 applies only to those who work on a regular and systematic basis if they are casuals.

If you look at some of the industries that I have been associated with over the years—the fast food industry, the retail industry and, I know from others who have been involved in it, the hospitality industry—you will see that they are very heavily dependent on casual labour. There is a great preponderance of casuals who work within those industries and it would not be too hard to construct a place of employment of substantial size where there are a substantial number of employees who do not work regularly and systematically. If you look at the industries we are talking about—the fast food industry, the hospitality industry and the retail industry—we are dealing with industries where there is a reasonable proportion of high school students, university students and the like who take up employment in those industries and are not necessarily able to work on a regular and systematic basis, purely and simply because of their workload at school or their commitments at university. So we now open up a whole new era of employing people where employers will make sure that the hours are not regular and systematic and that they can have as many employees as they like and avoid the provisions of the bill that is being proposed here today. Simply, it does not spell out natural justice; it spells out the encouragement of practices that will cause people a great deal of angst and pain in their employment and give them no predictability in terms of their income and no stability in terms of their capacity to earn a livelihood. What we have here, in effect, is something that strips ordinary workers of their right to the dignity that they are entitled to. Of course, the qualification that has been made in the explanatory memorandum does nothing to assist the confidence of young people in fronting up for jobs in the fast food, hospitality or retail industries.

Even if one did accept the number of 15 and that there were going to be no casual employees in that place of employment, one then finds that the figure of 15 will become a limiting factor for small business and that it will actively discourage small business from employing beyond 15 employees. As I said during the earlier part of my speech here today, the figure of 15 is quite artificial and it will quite clearly act as a disincentive rather than as an incentive for small business employers to employ people. Having reached that magic mark of 15, the small business employer will find no need to go above that number because, if they do, they then are no longer able to access this piece of legislation. In that sense, it is a very cynical piece of legislation indeed. The legislation goes no way towards improving the dignity of the individual.

In his second reading speech, the minister stated:

The introduction of a six month qualifying period provides a fairer balance between the rights of employers and employees in this statutory cause of action.

How anyone could arrive at that conclusion is absolutely beyond me, because the balance in the employment relationship is always heavily weighted towards the employer. The claim that putting in a six-month qualifying period will in some way make for a fairer balance is completely and utterly wrong. What it will do is completely tip the scale in favour of the employer. The employer not only will have the whip hand in terms of employment but will also have the future of the employee completely in their grasp, because the employee has no right to redress unfair dismissal for the first six months. To me, the statement put in this debate that the balance will be fairer between the employer and the employee is completely untrue.

Another claim in the minister's second reading speech is that the legislation will deter frivolous claims. Of course, that is a nonsense. As I said, my long experience in the arena of industrial relations has shown me that frivolous claims invariably do not go anywhere anyway. My colleague Senator George Campbell said in this respect—and rightly so—that lawyers who poke their noses into this arena and want to make money out of it may well promote frivolous claims. But those of us who have experience and knowledge in this area and are involved in the industrial relations arena have never been about promoting frivolous and vexatious claims for the simple reason that it only clutters up one's time. Deterring frivolous claims will not be a consequence of this legislation. The legislation will not have any effect on frivolous claims. The only ones who will promote frivolous claims are the lawyers.

Another thing that the minister said in his second reading speech was that the Council of Small Business Organisations of Australia claimed that the passage of this legislation would allow the creation of 50,000 jobs. That is a highly emotive claim and there is no basis to it whatsoever. It is absolutely without any underpinning validation. It is purely and simply something that the minister has clutched on to and tried to promote as being one of the consequences of this bill. If this bill goes into force—and I believe it will not—then I believe we will see the opposite happen: we will see a churning of employment and the destabilisation of the employment relationship for so many people. Rather than see additional jobs being created, we will see additional misery being created for people. There is no basis for the figure of 50,000 jobs. And even with that figure, they do not say what types of jobs—full-time jobs, part-time jobs or casual jobs? If there are 50,000 casual jobs, based on the government's own explanation in the explanatory memorandum, then many of those jobs will not be worth while because the employers, to avoid the provisions of this legislation, will ensure that the casuals do not work on a regular and systematic basis but work on an irregular and a non-systematic basis.

As my colleagues before me have said in the debate, this bill is nothing more than a sham. The only thing that will promote true employment is good economic growth. The provisions of this bill will not in any way give additional employment to people in the community; all they will do is create misery. They will remove the dignity of the individual in our society—dignity which is so important to the individual in their working life.