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Monday, 22 March 2004
Page: 21472


Senator WONG (1:17 PM) —I find it interesting in this place that so often in the context of bills relating to unfair dismissal applications we hear members of the government saying that this is a government that believes in employment security. I think most Australians would find it hard to understand why a government that supposedly believes in employment security continues to try to water down the rights of Australians to continue to work in secure jobs and, if they are dismissed, to make unfair dismissal applications. The unfair dismissal jurisdiction that exists under the federal act exists for a very simple reason—that is, if people are to be dismissed they ought to be dismissed fairly; and if they are dismissed unfairly they ought to have a remedy. I would have thought that goes to the very heart of employment security, that you are preventing employers from dismissing people unfairly and for the wrong reasons or for not properly giving them warnings and so forth.

It was an interesting contribution by Senator Santoro. I assume, from what he read out, that it was an extension of time application where the commission actually had regard to the complexity of the dual system for the purposes of excusing the applicant's failure to lodge on time. That appeared to be the gist of the quote of the judgment that was read out.


Senator Santoro —The gist was that none of the parties understood.


Senator WONG —If none of the parties understood, we could have amendments to the act which harmonise the state and federal systems. That would actually deal with the issue. Frankly, that is the fault of this government and its drafting of the provisions of the Workplace Relations Act. I would acknowledge, as a person who has previously practised in the jurisdiction, that it is extremely difficult for a solicitor, let alone a layperson, to work out precisely what the extent of the Commonwealth jurisdiction is. Yes, we should have the act drafted more clearly. Yes, perhaps we should have better harmony between the state and federal systems. But to move from that proposition somehow to the proposition that that means the federal government ought to be able to override state legislation in relation to unfair dismissals is a very long bow to draw. It is an illogical and inconsistent step. The reason it is illogical and inconsistent is that this government is not interested in taking a logical and consistent approach to dealing with any of these industrial relations issues. It takes an approach which is based on ideology, which is based on continued attempts at watering down industrial rights both for unions and for individual workers, and that has been consistently the theme of the industrial relations legislation that we have seen before this Senate. That also is the basis of the bill we have before us today.

I want to turn briefly to the particular policy agendas which are set out or explicit in this legislation. First, the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2] seeks an exclusive jurisdiction for unfair dismissal to the extent that the Commonwealth parliament is able to legislate. Second, it introduces a separate criterion for small business. Further, it seeks to prevent unfair dismissal arising for operational reasons. Finally, it attempts to impose a limit on compensation by various means.

Properly understood, this legislation is an attempt by the coalition government to use the power available to it at the federal level to reduce the rights of working people in Australia. Properly understood, that is the objective of this legislation. So we can have a discussion at a principled level about unitary industrial relations systems, but if you really consider what this legislation is about it is essentially about reducing the rights of individual workers and using the legislative power of the Commonwealth parliament to swing the balance away from workers and towards employers. Obviously, there is a political context to this legislation as well. We have state Labor governments and we have a Liberal, or coalition, government in power in Canberra. Naturally, what has occurred is that the coalition is attempting to use the political power that it does have at the federal level, given that it does not have a majority in any of the state legislatures, to shift the balance in the system to employers.

This is not a new proposal. We have debated similar legislation previously in the Workplace Relations Amendment (Termination of Employment) Bill 2001. Nor is this a new approach. One only needs to go through the record of this government when it comes to industrial relations to see quite clearly who the ideologues in this debate are. We hear a lot of complaint from the other side about those of us on this side who actually believe in fair and balanced industrial relations, in the right of workers to organise collectively. We hear a lot of criticism of those principles from the other side, accusations of us being political lackeys and various other insults which are hurled across the chamber.

I say to this chamber and also to anyone who happens to be listening: the real ideologues in this debate are to be found on the other side of the chamber. That is quite apparent if one goes through the bills currently before the Senate and also the acts which have previously been passed. I will go through a few of those because it seems to me that they are thematically consistent with the legislation that is before us. We have had the transmission of business act, which was an amendment of the Workplace Relations Act, whereby the transmission of business provisions in respect of certified agreements were altered, enabling employers to not remain under an existing certified agreement on the transmission of the business. Again, it was a diminution of the rights of employees if the business was sold whereby they might have had an agreement with one employer and, the business being sold, they then could be left without that agreement in place. There were some Democrat amendments but that essentially was the intent of the government's legislation.

We have had the fair termination act 2003, which excluded casual employees from accessing unfair but not unlawful dismissal remedies unless they had been working for 12 months. We have had the prohibition of compulsory union fees act which prohibited the payment of bargaining services fees and the inclusion of bargaining services fees in agreements and voided existing clauses. We have had the genuine bargaining act which increased the powers of the commission to make orders which, clearly, was directed primarily at trade unions. We have had the Workplace Relations Amendment (Tallies and Picnic Days) Act which sought to remove union picnic days and meat industry tallies from federal awards, although the bill was amended. We have had the termination of employment act 2001 which introduced a three-month qualifying period and had other restrictions put in place. We have had the Youth Employment Act 1999 which allowed pay rate discrimination to continue.

In terms of bills before this parliament, we have had a number of pieces of legislation which the Senate is going to be considering over these coming months. We have had the Building and Construction Industry Improvement Bill 2003 which banned pattern bargaining and any industrial action that was not protected, restricted union rights of entry and limited the operation of state law. We have had the Workplace Relations Amendment (Better Bargaining) Bill 2003 which, amongst other things, seeks to deny access to protected industrial action during the life of a certified agreement, even over claims not addressed in the certified agreement. We have had the Workplace Relations Amendment (Award Simplification) Bill 2002, which has been referred to a legislation committee, which seeks to make a number of award matters non-allowable, including matters such as long service leave, jury service, transfer between work locations, and public holidays above those specified in the award. We have had the Workplace Relations Amendment (Choice in Award Coverage) Bill 2004 which seeks to reduce the scope of federal awards safety nets. And we have had the fair dismissal bill, which is already a double dissolution trigger, which sought to exclude employees of small businesses—that is, people employing 20 employees or fewer—from making any unfair dismissal application in the federal jurisdiction.

These are some of the bills which the Howard government has pursued, or is pursuing, in relation to industrial relations. They are clearly pieces of legislation aimed at reducing existing rights and conditions of Australian workers. How the government can continue to trumpet its credentials as a government interested in employment security when it is regularly and consistently seeking to abrogate rights which currently exist is, frankly, beyond me. Perhaps the answer is to be found in the attitude that has been displayed in previous debates in this chamber by Senator Abetz and Senator Santoro. Senator Santoro in an interchange with Senator George Campbell on 2 March stated:

... you deserve to be treated with the contempt that you and your union movement are treated with.

Senator Abetz in the second reading debate on the codifying contempt offences commented:

Who said dinosaurs were extinct? We have just heard from one and it seems to be back to Jurassic Park days with Senator George Campbell's contribution.

Hansard is replete with accusations that persons on this side of the chamber were previously trade union officials, which seemed to me to be a rather odd accusation. But that seems to be part of the rhetoric from the other side no matter what the legislation is before the parliament.

I go back now to some of the comments made by Senator Murray, because he did make some important comments regarding the Democrats' position. Senator Murray articulated what I understand the Democrats' position to be—that they support a unitary system in principle. Let me say this to the Democrat senators: the Labor Party respectfully disagrees with their position and in the current environment we say that that analysis really is acontextual and apolitical. There are quite a number of issues to do with both the legal and jurisdictional context and also the political realities we are currently in which would preclude, we say, moving to a unitary system.

The first is a simple one about the constitutional limitations of the federal parliament. Without going through the details of how the federal parliament can legislate with respect to industrial relations, the reality is that the jurisdictional basis for any industrial relations legislation in this parliament is naturally more limited than what can be passed in most of the state legislatures. For this reason there are quite a number of state acts which actually go well beyond the jurisdiction of the federal legislation when it comes to certain employees. The most obvious example is employees who would be on the cusp of a common law definition as between employee and independent contractor.

That is a real and pressing issue within today's society. We have more and more employees who are employed or engaged on terms and conditions which could make them either a common law employee or an independent contractor, depending on what approach is taken. In respect of some vulnerable groups of workers, such as outworkers, those people are brought within the regulatory system of the state in some states. Such a provision exists in the legislation of my home state of South Australia. There would be constitutional difficulties, I suggest, in expanding—even were the government minded to, which they are not—the federal jurisdiction to deal with such employees. In fact, one could argue that even were the federal government minded to do so there may be significant constitutional impediments to them doing so. So moving to a unitary system in respect of those employees could potentially reduce rights which already exist.

Second, and I say this having had some experience in industrial relations prior to coming into parliament, my impression of state legislation and state commissions is that sometimes, not always, they are more at the coalface than the federal commission. Often, certainly in South Australia, it was easier for employees, even those who were not represented, to deal with applications via the state legislation than applications via the federal legislation. It was a process, a procedure and, frankly, a piece of legislation which was far more user friendly than the federal system.

The political context which I would ask the Democrats to have regard to is this: it is patently obvious that we have a federal coalition government and we have state Labor governments. Any move by the federal government to impose a unitary system is clearly a politically motivated move. That is also demonstrated by the provisions of this bill. If we are to move to a unitary system, let it be negotiated and not imposed. It is remarkable that the government, which often trumpets about state rights, is seeking to walk roughshod over state legislatures in an attempt to impose its politically motivated system on the states.

I say to the Democrats that there are two main principles which ought to be considered before any consideration of a unitary system. First, any unitary system must be negotiated and not imposed on the states and, second, it cannot be a situation where the federal system is imposed for the purpose of establishing a lowest common denominator. Those two issues are not met by this legislation. In fact, those two issues are clearly transgressed by the bill that is before the Senate. For that reason alone, apart from the other policy reasons, this bill should be rejected.