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Monday, 22 March 2004
Page: 21468


Senator SANTORO (12:59 PM) —I very much appreciate the thoughtful contribution of Senator Murray to this debate. I think Senator Murray speaks a lot of sense and I thank him for the support in principle that he extends to the government in terms of the Workplace Relations Amendment (Termination of Employment) Bill 2002. The point I would like to make to Senator Murray is that this bill represents a beginning: the beginning of a journey along a road that obviously Senator Murray wants to travel—and which would be of enormous benefit to Australian small businesses. I would like to comment on some of the issues raised by Senator Murray, particularly in relation to the debate about the 12-month versus the six-month probationary period.

I have considerable experience in terms of that debate because one of the more tricky questions I had to navigate through a parliament that I previously served in—and I had the privilege of serving as the minister for industrial relations in the Queensland parliament—was exactly that point of 12-month versus six-month exemptions from unfair dismissal provisions for small businesses with under 15 employees. At that stage in Queensland we basically had an `upper house' of one in the very well-meaning, intelligent and constructive Independent, Mrs Cunningham. After consulting extensively throughout the community, we agonised over whether or not we as a government would introduce legislative provision that would exempt for either six or 12 months small businesses with 15 employees or fewer from the application of the unfair dismissal laws of the government that I was a member of. All the feedback I got from small businesses was that they preferred the 12-month exemption as opposed to the six-month exemption. There were many reasons stated for that preference.

Nevertheless, after an extensive consultation process, the then—and still—Independent member for Gladstone, representing the very strong industrial electorate of Gladstone, which was previously held only by the Labor Party, and I agreed that the 12-month exemption from unfair dismissal laws would be more appreciated by businesses. I suppose the proof of the pudding is in the eating. During the two years that those laws applied, there was record employment growth in Queensland, particularly within the small business sector. I will not say that we created that; sometimes I think politicians take on the mantle of job creation too easily. It is the economy, particularly the small business sector, of states—and indeed national economies, such as the Australian economy—that is the biggest generator of employment. Just over 40 per cent of all full-time jobs generated by business and small business in Australia were generated in Queensland at that time. I think those legislative provisions I have just referred to contributed somewhat to that.

The other interesting point Senator Murray made is that there is some reluctance by various states to agree to a unitary system of unfair dismissal laws. I must admit that, when I was representing a state jurisdiction—and without the benefit of the rather unhelpful experience of now having Labor governments right across Australia—I was a pretty strong defender of a state system of industrial relations. There are a lot of players in all states, including Queensland, who have sinecures—who have positions to protect, I suppose, if I can put it that delicately—who would be opposed to the bill being debated in this place today. But, with the passing of time, I have become a convert—at least in terms of the provisions of this bill—to the concept of a unitary system as it applies to unfair dismissals.

Senator Murray mentioned the experience of Victoria and the fact that Victoria has not reverted to a state based industrial relations system. Senator Murray, I am sure, would appreciate, like all of us, that Victoria really did not give up that much when that state's industrial relations powers were taken on by the federal government. The bulk of the workers—or should I say employees; we are all workers, aren't we?—within the Victorian economy were, in fact, generally covered by federal awards and the federal jurisdiction. I suppose it is not surprising that the Victorian government does not have much incentive to take back jurisdiction which, in many ways, it did not have. Certainly I appreciated Senator Murray's contribution and I thank him most sincerely for making it. I say to Senator Murray: the moment is now. The opportunity to provide relief to businesses who have operations across the multiplicity of the often unfriendly state industrial relations jurisdictions is now, and we can make a start today. I hope that, as the debate progresses, the attitude of the Democrats towards this bill will become even more benign than it currently is.

Certainly the government believes that a more unified national workplace relations system means less complexity, lower costs and more jobs for all Australians. It means providing special relief for small businesses confronted by unfair dismissal claims. It means further streamlining the handling of claims generally in the federal arena. The government's workplace relations system is working: there is more employment, there are fewer strikes and there are better prospects for businesses and employees of businesses as a result of that industrial relations environment. I respectfully suggest to this place that Labor, through its strident ideological opposition to this bill, is trying to kill all of that off.

Labor sees the bill we are debating today as a hostile takeover of state unfair dismissal laws. Labor sees it as some sort of constitutional assault—never mind that it proposes to use only existing Commonwealth powers. There is no Labor style constitutional vandalism involved in this particular initiative. Labor's spokesman in the other place, the member for Rankin, says that wherever possible the Howard government is obsessed with weakening and removing from working Australians any protections against being dismissed unfairly. That is the big union line, of course. We should not be surprised at that; the opposition does get its marching orders from the union movement, after all. It is interesting to contrast Labor's bleak vision of the workplace relations landscape with the reality. Perhaps the member for Rankin is hiding an unsuspected Cezanne in his closet; he is apparently pretty big on impressionism.

The Australian Chamber of Commerce and Industry says that the Labor Party's industrial relations platform that it adopted at its national conference in January would adversely affect the interests of private employers and compromise economic development. The ACCI represents commerce and industry at the sharp end of the business, where the profits and losses are made. Business is in the business of making a profit. Labor, it seems to me, is in the business of making sure that business does not make a profit—indeed, that it makes a loss. According to the ACCI the additional costs Labor would impose on business through further regulation and heightened trade union activity would have significant implications for jobs and employment.

The ACCI has called on the Latham Labor Party to at least match the policy vision—and we on this side of the chamber are always happy to give credit where credit is due—adopted by former Prime Minister Paul Keating for a less centralised workplace relations system. Now here is a chance for the Labor Party. Here is an opportunity for it to do what it claims to do best: go back to the past. This would only be a modest shift backwards, after all. The ACCI is not suggesting the ALP should go as far back as it apparently wants to in terms of industrial relations. The ALP wants to pretend this is 1904, not 2004. The ACCI is only suggesting it gets into Mr Latham's time machine for a swift flit back to the 1990s. The ALP must be able to manage that modest excursion if it claims, as it does, that it can go right back into history to find its industrial relations policies.

In the context of the bill before us it is instructive to list the areas of significant concern to the ACCI—and the hundreds of thousands of businesses, mainly small businesses, that it represents—in terms of Labor's workplace relations policy for the 2004 election. These areas of significant concern include increased regulation of workplace bargaining; acceptance of industry wide agreements, in other words, pattern bargaining; abolition of Australian workplace agreements and individual bargaining rights; removal of the ACCC jurisdiction over secondary boycotts; arbitration of non-agreed bargaining demands; expanded AIRC powers and award regulation; expanded union right of entry and employer obligations to assist union activities; rights for casual employees to convert to part-time employment; regulation of contractors; facilitation of schemes for portability of employment conditions; paid maternity leave implications for employers; national entitlements scheme implications for employers; expanded eligibility for claiming unfair dismissal; and union participation in government tenders and procurement.

No doubt those opposite would like to characterise the ACCI's obvious problem with Labor Party policy as just another Tory tall story. But the ACCI does not campaign for or against political parties. It is not against Labor. It is, although it would be far too well-mannered to put it in these terms in these circumstances at this time, against stupidity. That is the sort of thing the ACCI is talking about. We should acknowledge that the ACCI notes that productivity could still be improved—and the government agrees with this hypothesis. Further improvement to productivity and to the employment prospects and wealth of all Australians is indeed what this workplace relations bill and others that have been through this place—some without very much success—are all about.

The ACCI lists the reforms and benefits of the government's industrial relations policies. The ACCI does base its proposals for reform on the extensive consultation that it undertakes with its vast membership. The benefits are higher real wages, at 3.6 per cent growth a year, which is higher than inflation; lower interest rates because of lower inflation; fewer disputes and strikes, and it is worthy of note that under the Liberal coalition government industrial disputation in this country is at its lowest since 1913; record employment, with more than 9.6 million Australian jobs; and lower unemployment, at 5.7 per cent, the lowest in 22 years. How anybody can rail against the further reform of an industrial relations system that has produced those reforms and those benefits for all working Australians and all employees really defies comprehension and understanding.

In these circumstances it is hard to see where the member for Rankin in the other place has gained the impression that this bill represents a naked grab for power by the government. Something that we on this side of the house are very much concerned about is employment security. We are as much concerned about employment security as we are about employment growth. This bill is designed to place employment continuance in the forum where these things, subject to legislation and normal rules of conduct, are best settled. In the broader scheme of things, a union, for example, is not ideally suited to the role of employment agent, as it constantly seeks to interpose itself; exactly the reverse, indeed, is more likely to be the case. Most employment in the private sector in Australia takes place in an environment from which organised labour in the old sense is absent. Overwhelmingly small business is the employer of Australians. Small business should not be held to ransom by big unions running a political agenda; it really is as simple as that.

In order to illustrate the sense of this legislation I would like to refer to a case that came before the Industrial Relations Commission in December. This very interesting case illustrates precisely the kind of difficulty this bill is designed to overcome. In this case, someone who claimed to have been dismissed contrary to provisions in Western Australian industrial legislation was determined, by a hearing in the Australian Industrial Relations Commission, to be able to proceed under federal law. The case itself first turned on matters of timing—whether the applicant's claim had been lodged within the legislated time frame. It is worth reading the relevant parts of the decision made by Commissioner Thatcher of the AIRC in Perth on 8 December 2003, and I propose to do so now. It will not take long. For those interested, the AIRC decision in question is U2003/6516. The issue was whether there was an acceptable reason for the applicant's delay in lodging her application. Commissioner Thatcher found as follows:

Counsel for the applicant was critical of the existing jurisdictional arrangements “which confuses sometimes even the most knowledgeable legal minds in the sense of which jurisdiction to go to” and submitted that “the system is just incomprehensible to the ordinary person”.

He went on to say:

The irony is that it cannot be concluded that this case was one of representative error with—

the applicant—

being provided by her adviser with the form for the wrong jurisdiction. Nor can it be concluded that the delay was because—

the applicant—

had been proceeding in the wrong jurisdiction. This is because the Western Australian Industrial Appeal Court decision in City of Mandurah v Hull has been interpreted by the WAIRC to mean that it has jurisdiction to hear and determine applications from employees covered by federal awards and certified agreements whose services have been terminated on grounds that the employee had been harshly, oppressively or unfairly dismissed.

Therefore had—

the applicant—

not been influenced not to proceed to lodge the completed Form 1—

the Western Australian form—

when she presented it to the registry, the claim would have been lodged within the prescribed 28 days after the date of termination in the state jurisdiction and proceeded to be determined by the WAIRC without any need for an extension of time for lodgement to be granted.

Commissioner Thatcher went on to say:

Clearly, the apparently overlapping federal and state unfair dismissal laws that operate in Western Australia confused the applicant, like many laypersons. Given that the two systems are by no means harmonised, she was in no position to assess for herself the relative advantages and disadvantages of proceeding in the Western Australian jurisdiction on the grounds that she had been harshly, oppressively or unfairly dismissed from her employment or in the federal jurisdiction on the grounds that her termination of employment was harsh, unjust or unreasonable. If her evidence is accepted, not only was she confused by the complexity but the public servants she spoke to were also.

He went on to say:

No similar jurisdictional issues apply in respect of the application that relate to alleged contraventions of sections 170CK, 170CL, 170CM and 170CN of the federal act as there are no similar provisions in the Western Australian Industrial Relations Act 1979 and therefore no such claim would have been contained on the Form 1 that the applicant had been intending to lodge in the WAIRC.

There you have in a nutshell the precise set of difficulties that this bill we are debating here today is designed to resolve. I have chosen that particular case amongst several others that I could have chosen to speak on because it is one that relates to a jurisdiction that I know Senator Murray is very much concerned about, that being WA jurisdiction. The government has reintroduced this bill because it believes that a more unified national workplace relations system means less complexity, lower costs and more jobs. The evidence for reform achieving these outcomes is very clear. What is not clear is why the Labor Party has its head in the sand on these issues if it aspires to be a party of modern government in modern Australia.