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Thursday, 12 December 2002
Page: 8028


Senator MURRAY (10:55 PM) —The Workplace Relations Amendment (Fair Termination) Bill 2002 is not, as it has been portrayed in some quarters, an assault on the workers of Australia. It is not a set of new conditions. A Federal Court decision, Hamzy v. Tricon International Restaurants trading as KFC, 16 November 2001, declared regulations invalid. Those regulations had existed since 1996, and this legislation seeks to put matters which had been in law since 1996 and then were declared invalid by a court ruling back into law—in other words, confirming the intent of the act. The regulations that were declared invalid excluded certain classes of employees from unfair dismissal remedies, saying they went beyond the exclusions authorised by the act itself. This bill, as a consequence, seeks to deny short-term— which is defined as less than 12 months— casual employees access to the federal unfair termination remedies.

At the time this was addressed in debate and discussion, it was felt that if there were to be an exclusion for a probationary period for permanent employees then you would need a longer exclusion for casual employees. I think really Labor are suggesting that they recognise that you should have a longer exclusion for casual employees than for permanent employees, because the probationary period for permanents is three months—and they are suggesting six months. I remark to Senator Ludwig that one of my fears is that, in the drive for harmonisation, with which I agree, there will be a drive for a general six-month application for both permanent and casual in both state and federal jurisdictions.

Senator Ludwig might be aware of the schedule that has been provided, as a result of a request of mine, to one of the committee reports, which indicates that, although the probationary periods and exclusionary periods vary between state and federal jurisdictions, there are a number that already are around the six-month and nine-month area. As I understand it, the Queensland Labor government have introduced one of six months. There is something of a fear in me that your going this route will encourage the government to say, `If we accept that as six months, we will make it six months for the whole lot now. How do you feel about that?' I suspect that will be a discussion later on. However, the proposition put by the opposition is an interesting one, because since 1996 the nature of our employment profile, if you like, has changed quite significantly. I did not bring down with me my files, but I recall that the numbers of casualised employees were very much lower in 1996, as a proportion of the working population, than they are now. Of course, many more were under state legislation than were under federal legislation. The number of casualised employees has increased. In those circumstances, it is a proposition worth attending to.

There are other aspects of the bill which simply, as I say, do not represent an onslaught upon the workers at all but restate conditions which have been there for some time and are repeated under labour law in state regimes. The act repeals regulations denying defined types of employees, including probation employees and persons employed for specified periods, access to federal unfair termination laws for a period. That re-enacts, with minor changes, those exclusions in the principal act. The bill seeks to retrospectively validate the operation of federal termination employment regulations held by the Federal Court to be beyond the regulation-making powers available under the principal act. They include in the principal act a provision requiring applicants for relief under federal unfair termination laws to lodge a $50 filing fee. That $50 fee has been imposed since 1996 by way of regulation. That filing fee will now be CPI indexed. Of course its real value is much less today than it was in 1996.

The Australian Democrats agreed to the Workplace Relations Act provisions that excluded short-term casuals and trainees. Those provisions have been in place since 1996 and, as I have said, this bill will reinstate them. Changes in the regulation of this area—and this, of course, is a concern—do generate uncertainty for employers and employees and are a source of business aggravation. It is always difficult with both unions and business to work out quite how much is genuine aggravation and how much is positioning, not denying that there often is genuine aggravation on both sides but also not denying that there is a bit of rhetoric and positioning that goes with these things.


Senator Jacinta Collins —A Federal Court case: that is genuine aggravation.


Senator MURRAY —I take the interjection, but since I represent neither business nor the unions I think I would regard my remarks as objective. A complicating factor—and that is why I am interested in the remarks made surrounding this—is the rapid growth in casual employment since 1996 and the need to attend to its consequences. Quite frankly, I think the Senate would do the country a great favour if at some time we had a deep look at the whole issue of casual work and tried to understand it a little more in terms of both state and federal trends and what is genuinely going on. It is difficult to know the numbers of employees likely to be affected by these laws. I saw some stats some time ago which indicated that in a particular industry, whereas a little over 50 per cent of employees were under state law, nearly 80 to 90 per cent of casuals were under state law. I did not really understand why that should be so. I might have misunderstood what I saw and heard, but there are those oddities out there in the ether. I have not arrived here with a position on the six months—contrary to your perceptions, Senator Collins, in your private remarks to me. Having heard the arguments of the opposition, I really would like to hear the arguments of the government against the proposition that the six-month period might be both fairer and more applicable for the year 2002 compared to the precedent in 1996.