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Monday, 22 March 2004
Page: 21479


Senator FORSHAW (1:52 PM) —Here we go again. The first item of legislation, the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2], that this government has before the Senate this week is a rehash of a bill presented to this parliament last year and defeated. As my colleague Senator Hogg has just so eloquently pointed out, there is nothing new in what the government is putting forward on this occasion. Indeed, all the arguments advanced by the government in support of this bill, which were soundly rejected on the last occasion, are simply regurgitated again. One would have thought that this government would have far more important matters to focus on at this time than just bringing back an old piece of legislation for some ideological purpose and for the purpose of lining up another double dissolution trigger. When the bill was presented for the first time in August last year I stated:

Since 1996, when the coalition government came to power, there have been over 50 separate pieces of industrial relations legislation introduced by the coalition government. In nearly all cases they have been directed at reducing entitlements for workers, removing their rights, targeting particular groups of workers—such as those in small business—and creating inequitable situations for them. They have been about promoting non-unionism. They have been about limiting the ability of democratic trade unions to function within the industrial relations system.

Those words were true then and they are true today. This legislation will do nothing to streamline industrial relations legislation around this country. It will do nothing to bring about a fairer or simpler system, as the government claimed in its second reading speech. This legislation will do nothing to bring about a uniform and harmonised set of industrial relations laws. These claims about uniformity, national consistency, harmony and a fairer, simpler system are all rhetorical flourishes that the government is engaging in. But any person who has ever been remotely involved—let alone in any detailed way—with industrial legislation in this country knows that those principles are totally at odds with what this legislation seeks to do.

What does the bill do? What it does is to actually remove from the jurisdiction of the state industrial relations commissions the ability of those commissions to determine unfair dismissal cases for employees employed by corporations. With the stroke of a pen, if the legislation is passed, it will overturn more than 100 years of history in some cases, such as the history of the New South Wales industrial jurisdiction. The jurisdiction has a fine record of ensuring industrial harmony and stability within the state of New South Wales during those years and has done so, I might say, in cooperation with the federal jurisdiction. The bill relies on section 51(xx) of the Constitution—that is, the section known as the corporations power. As we know, the Constitution states:

51. The Parliament shall ... have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

... ... ...

(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth ...

It is a head of power that is focused upon the management of foreign corporations and financial and trading corporations. It is a power that was put into the Constitution to regulate essentially commerce, both domestic and international, in its impact upon Australia. But the government is using this head of power to emasculate the state commissions' ability to determine unfair dismissal cases. It is not relying upon the head of power in the Constitution directly referable to industrial relations—that is, the power under section 51 (xxxv). That is the power which speaks about the Commonwealth having the right to pass laws for the prevention and settlement of industrial disputes. That is the head of power under the Constitution that has been used since 1904. This year is the 100th anniversary of the first Conciliation and Arbitration Act. That is the head of power that has been used to regulate the Commonwealth's involvement in industrial relations.

But this government knows that it cannot rely upon that power, so it is seeking, by a backdoor means, to use the corporations power to take away the rights of state jurisdictions. This legislation is simply an abuse of that power. I might point out that the High Court has recognised that the corporations power itself does not extend to giving the Commonwealth total control over the operations of all corporations or all companies. For instance, the Commonwealth does not have the power generally to regulate the incorporation of companies. The fact that we have a corporations power under federal law in this country today is because each of the states has agreed with the federal government to enact uniform companies law. That is the way you bring about national consistency and national uniformity. You do it in consultation and in cooperation with the states. But this government has had no consultation with the states. It has not sought any agreement with the states to bring about a uniform system of industrial relations. It has not had any discussions with the states about taking away their unfair dismissal powers. What it has done is simply put forward a bill in the federal parliament which, if passed, would take away the powers of the states in that regard. That is an abuse of process. It is not about preventing or settling industrial disputes. It is about trying to create even more disputes.

Debate interrupted.