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Monday, 22 March 2004
Page: 21537


Senator FORSHAW (5:30 PM) —Before debate on the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2] was adjourned prior to question time, I had made mention of the fact that the government was relying on the corporations power of the Constitution rather than on the specific head of power—namely, the power for the prevention and settlement of industrial disputes. As I said, this legislation does not achieve—or does not even really attempt to achieve—the objectives that the government claims for it in the minister's second reading speech on the bill. What the government is doing is simply riding roughshod over the rights of the states when it comes to the regulation of industrial relations issues within the states.

We have had a dual system of industrial relations regulation in this country, as I said, since at least 1904. One of the great features of our industrial relations system, at both the federal and the state levels, is the respect for the role of the industrial commissions in conciliating and arbitrating on industrial issues, resolving problems at the workplace through a cooperative approach. But, where there is a need for the umpire to make a decision, the system has provided for that through arbitration. That principle has been followed by governments of all persuasions right through until, frankly, the election of the coalition government in 1996. As one who has had a long history of involvement in industrial relations issues prior to coming into this parliament, I have to say that even the Fraser government never went as far as this government has gone in trying to reduce the rights and entitlements of employees. Ministers such as Ian Viner and Ian McPhee, despite the fact that they certainly came from a conservative background that was critical of the role of trade unions in the industrial relations scene, respected that employees had rights, that unions had rights and that the commissions had the responsibility, ultimately, for resolving industrial relations issues. The government did not seek to impose itself constantly on the outcomes of the proper bargaining processes between workers and their employers.

But since Mr Howard became Prime Minister that has all changed. As I recall from his years in opposition, Mr Howard himself always had this reformist zeal to change the industrial relations system in this country and to change it forever to his way of thinking. That is what he set out to do and, as I said, that is why we have seen at least 50 pieces of industrial relations legislation brought before this parliament in the last seven or eight years. Many of them—indeed, most of them—were nothing more than attacks upon workers, trade unions and the industrial relations commissions, seeking to remove that important principle of independence. That is what is happening here. The government is taking away by legislation a right that the state commissions have had for many, many years. It is hypocritical for the government to claim that this will create harmony and a simpler system. Indeed, it will be more complex.

Let me paint a picture. This bill, if passed, will mean that state jurisdictions—state industrial commissions, such as the New South Wales Industrial Relations Commission—will no longer be able to hear claims for unfair dismissal by employees of corporations in that state. If those employees are covered by a state award of the industrial relations commission, all of their wages and working conditions will continue to be regulated by the state industrial relations commission except for that area of unfair dismissal. You could have a situation, for instance, where there may be negotiations between a corporation and its employees, represented by a union or maybe not represented by a union. They are going through the negotiating process. Let us say there is a dispute, and let us posit—it is more than a possibility; I have seen it happen many times—that an employee or employees are dismissed. Suddenly the state industrial relations commission has no role. It then transfers automatically to the federal commission—notwithstanding that it may have been that the New South Wales Industrial Relations Commission was overseeing the negotiations and the whole process leading up to that dismissal. That is just one example; I can think of many, many situations where it will be far more complex.

It cannot be argued that taking one element out of the employment contract—the element of unfair dismissal, which is effectively the termination of the contract—and out of the realm of the jurisdiction of the state commission, transferring it to the federal commission and leaving everything else under the auspices of the state commission is creating a simpler system. It is more complex.

The second reading speech sets out the government's real agenda. It says:

The Federal unfair dismissal law is generally less burdensome to employers and less destructive of employment growth than the State laws.

That is code for saying that it is easier to sack people under the federal unfair dismissal laws than it is under the state laws. I have always found it ironic that a government that wants to promote employment growth believes that the way you create it is by making it easier for employers to dismiss people. That is just total idiocy when considered as a proposition. It is simply illogical. The data shows that the highest level of employment growth in this country during the Keating and Hawke years in the various sectors of employment was in the small business sector. Throughout the whole period of the unfair dismissal laws regime that this coalition says was an impediment to employment growth, growth in small business employment was substantial. It was trending upwards all the time whilst employment in areas such as the public sector and large businesses was trending the other way. So the unfair dismissal laws were never really an impediment to employment growth.

The second reading speech also states:

Even if this were not the case, it is self evident there would be advantages in having to deal with only one set of laws rather than several.

As I pointed out, that objective will not be achieved. Employees who are currently employed by corporations and regulated by state industrial awards or agreements have a simple system at the moment. They have one jurisdiction looking after all of their employment contract related issues. This proposal creates a situation where they will have two jurisdictions. That does not sound more simple; that sounds more complex.

I point to one other hypocrisy that is evident in the bill—that is, the draconian way in which it is being done. This legislation, if it is passed, at the stroke of a pen will remove the unfair dismissal laws from the state jurisdictions. Whatever happened to that great principle of choice that we are lectured about every day of the week by this government: there has to be choice in industrial relations; employees and employers have to have the opportunity to make choices—choices about whether they want an award, an industrial agreement or an AWA; choices about whether they want to be represented by a union or not represented by a union?

One of the choices that have existed throughout our history is the choice available to employers and employees to determine which area of industrial regulation they prefer. It is quite open for employers to seek to have their employees covered by the federal commission or the state commission. There is effectively no impediment that prevents an employer in just about every business in this country, except for certain categories of employees, from seeking to be covered by the federal jurisdiction. Similarly, they can be covered by the state jurisdiction. The way our law is structured is, if they are not covered by a federal award or agreement, they are effectively covered by the state award system by virtue of common rule regulation.

There are plenty of choices available but there is no choice in this legislation. There is no choice for the employee to be able to go to the commission that he has relied upon for regulating all of his other terms and conditions of employment to seek redress for an unfair dismissal. That will be removed totally if this bill is passed. Let us not have any more of these lectures from this government about the fundamental importance of the principle of choice because, when it comes to the area of unfair dismissal, there is no choice for the employee; there is really no choice for the employer either. If you are a corporation or small business incorporated in New South Wales or in the states covered by the state jurisdiction and the bill is passed, you will lose your choice as to what jurisdiction you wish to be covered under. I am not opposed to national uniformity but it should be brought about by cooperation, not coercion. (Time expired)