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Monday, 22 March 2004
Page: 21549


Senator MACKAY (7:30 PM) —Today, like many of my colleagues before me, I profess to a profound feeling of deja vu standing here about to speak on the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2]. This is the very same bill that was defeated in this place as recently as last August. This is the same bill that has manifested itself in a number of incarnations over the term of this government. In fact, when following the debate on this bill in the House, I heard a number of speakers say that they had spoken on this bill in one form or another about 17 times. I am not quite sure how many times I have, but I think it is up there. By my calculations, that means that about 1.8 million words will have been spoken on this bill by the time it is, hopefully, rejected again at the end of this debate—or, at least, the key points of it.

I admit to a certain amount of frustration with this. I am frustrated that we are all here simply going through the motions because the government has just run out of steam and is too complacent to put up any legislation aimed at improving things for the Australian people and improving the life of this nation. Instead, we have the same old same old. We have bills being put up again and again that—in substance, with respect to this one—will not pass the Senate. This bill will not pass the Senate, because the elected representatives of the Australian people—at least, those on my side of the chamber and, I am hopeful, other senators—are simply not going to roll over in a fit of fatigue and pass it. The Labor Party will not be supporting the passage of this bill, because we believe it is our role to protect the Australian people from legislation that is not in their best interests. This bill certainly is not in the best interests of the working people of this country. So, jaded and frustrated as I feel, I will stand here again and go through the motions—just as I will later this week, again, when the government puts up the Telstra sale bill.

The truth is that this is really a tired and washed-up government with no real third term agenda. Where are the bills that Mr Howard talked about with respect to what he termed the `barbecue stopping issues'—the work and family issues? He promised action on that front at the last election, and we are all still waiting. Perhaps I should not be quite so uncharitable, because I guess in Mr Howard's book this is a work and family bill. By passing this bill we would be allowing many more Australian workers to spend more time with their families—because they will have been unfairly dismissed and will not have any work to go to. Perhaps that is where we have all missed the point.


Senator Abetz —Get a new gag writer!


Senator MACKAY —You can talk, Senator Abetz. We—on this side of the chamber at least—have been waiting and waiting for this government to introduce legislation to address what the Prime Minister identified as the key issue for this term: assisting workers to better balance work and family responsibilities. We have been waiting and waiting for legislation or policies to improve access to child care, to bring in a system of paid maternity leave—something I know that both you and Senator Crossin have been fighting very hard for—


Senator Crossin —The gas has run out on the barbecue!


Senator MACKAY —That is right. We have been waiting for legislation and policies to give workers more flexibility in how they juggle work and family. We thought that we were waiting in vain, but no, it was here all along. This is it! Do you want time off after having a baby? No worries! Tell your boss that you are pregnant, be sacked on the spot and then take off all the time you like! Because you are a casual worker who has been there less than six months, you have no chance of bringing an unfair dismissal claim. You cannot get child care to cover your shift-work hours? That is okay. Once your boss has unfairly sacked you with no redress for you, you will not need child care!

I am amazed that we did not recognise this cunning plan before. This is the Prime Minister's work and family legislation. It is here! I am sure that any day now this government will be introducing legislation to bring back the marriage bar. I am sure that our enlightened and forward looking Prime Minister would recognise that he should not discriminate against those in a relationship other than marriage. I am sure that, in that case, he would see his way clear to having an all-inclusive bill whereby women in de facto relationships, like me, and one member of a same-sex couple would also have to give up work. Yes, I can see it now: the reintroduction of the marriage bar, like the reintroduction of the ability to unfairly dismiss workers, would be an ideological, plausible way for this government to attempt, in the Orwellian way that it does, to promise to bring in ways of assisting workers to balance work and family. Keep women at home—problem solved.

That may be the government's way, but it is not the Labor Party's way, and we will not stand by and allow this government to strip away the entitlements of Australian workers. For anyone who remains in doubt about what this bill is attempting to do, even after over 1.8 million words have been spoken about it, let me recap and add some more words. This bill, one, reduces the amount of compensation that can be awarded to an unfairly dismissed employee of a small business; two, extends from three to six months the qualifying period before an employee of a small business can bring a claim for unfair dismissal; three, narrows the scope for an employee to mount an unfair dismissal action; and, four, reduces the amount of back pay available where reinstatement is ordered.

I am here to say to the government, the Prime Minister, Mr Abbott and, in particular, Mr Andrews that size does not matter and nor should it. There is no argument that will convince anybody in the Labor Party that an employee in the small business sector should possess fewer rights than any other employee. Why should a worker who works in a business with 20 employees have less protection than one who works in a business with 21? Does the worker in the smaller enterprise have children who have fewer health care and education needs? Is the small business employee any less likely to experience financial hardship if unfairly put out of a job? Are they more likely to find a new employer who will believe them when they say at an interview, `Yes, I was sacked from my last job, but I hadn't done anything wrong. It wasn't fair but, because I only had 15 colleagues, I couldn't do anything about it'?

The Prime Minister is fond of trotting out his truisms about Australian culture and what he believes defines the Australian character. One of the things that he thinks defines Australians is our belief in a fair go. I agree with the Prime Minister on that, most of the time. I think that the concept of a fair go is held pretty fondly by Australians and sits pretty deeply in the Australian psyche. So I ask the Prime Minister and his various ministers for industrial relations and workplace relations, through you, of course, Madam Acting Deputy President McLucas: where is the fair go in this? How can it be fair to have one rule for workers in a workplace with 21 employees and another harsher one for workers in workplaces with 20? It cannot be fair, and that is one of the reasons Labor will not be supporting the bill.

One of the more disingenuous claims made by the government about this bill is that its purpose for introducing the bill was to create a unitary system of unfair dismissal laws. Nobody on this side of politics believes that for one second. I think we have seen enough from this government to know that their prime motivation in the industrial relations field is removing power and rights from workers. This is a government that laid its cards on the table when it let the attack dogs loose on Australian workers on the waterfront. I will never forget that image—and I am sure nobody on this side of the chamber will—and nor should any Australian worker. That is this government's preferred industrial relations system—a vicious, snarling system snapping at the rights of workers. So any claim about this being about creating a more simplified, unified system clearly has to be taken with a grain of salt.

Surely if the government were serious about creating a more unified system, the first thing they would have done is consult with the states. They would have gone to the states and said, `How can we ensure we get a better system?' They would maybe take a draft proposal to them for comment to kick off discussions. Did the government do any of that? No, I am advised not. In fact, I checked with the office of my colleague Judy Jackson, the Tasmanian Attorney General and Minister for Justice and Industrial Relations, as recently as last Friday to see what level of consultation by the federal government had taken place on this bill. What was the answer? None. There was no consultation on a bill now in the Senate for the second time which has a direct and huge potential impact on the operation of the Tasmanian industrial relations system.

Professor Ron McCallum, a leading academic in the field of industrial law, said that this bill:

... will strike a blow at the five remaining state systems of employment regulation ...

He went on to say in his speech entitled `The future of state employment regulation in Australia':

... the enactment of this Bill will mean that 85% of Australian employees will only have recourse to the Federal Termination of Employment machinery when seeking to challenge dismissals which are harsh, unjust or unreasonable. This would mean that the State termination of employment regimes would have little work to do because currently they cover approximately 40% of the Australian workforce, and I suggest this would have a telling impact on the viability of these State-based systems of labour relations regulation, especially in the smaller states of South Australia and Tasmania.

Despite not being consulted, a considerable body of research has been undertaken in the states into the implications of this bill. In my home state of Tasmania, the Tasmanian Industrial Commission assessed the last 300 applications that were filed before this bill was put the first time. Their research found that there would be a significant impact on the work of the commission and that the bill would result in a number of potential applicants—33.2 per cent of their sample—not being able to pursue a claim in either the state or federal jurisdiction. Also, 46 per cent of the sample would need to pursue a claim in both the Australian Industrial Relations Commission and the Tasmanian Industrial Commission.

Clearly that is not a recipe for a simpler, more unitary system. What is more, it would bring about a reduction in the work of the state systems to the point where their viability is threatened and there would be an increase in the work of the federal commission. Funny that: the habits of a lifetime are quickly broken by this government when it comes to industrial relations. The explanatory memorandum that accompanies this bill states that the number of cases before the Australian Industrial Relations Commission will increase from around 8,000 to 14,000. We would have a near doubling of the AIRC's caseload. Already the government has allocated nearly $17 million to deal with this increased load. This particularly intrigues me because it flies in the face of nearly every other action of this government. In this instance, unlike dental health, World Heritage area funding in Tasmania or any of the other attempts to cost shift to the states, in this instance the government is saying, `Give it to us and we'll pay you.'

As well as increased funding, one could also fairly safely assume that the government may take the opportunity to appoint some new commissioners, and that really worries me because we all know what this government's record is like when it come to appointing mates. I have seen more than enough of the government's form in my role as Deputy Chair of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee. I know, based on the government's previous form, that the workers of this country should be afraid; they should be very afraid. Look at the appointment of Professor Flint to the chair of the Australian Broadcasting Authority. Look at Jonathan Shier and the stacking of the ABC board. Look at Christopher Pearson and the SBS board. Yes, the government's track record is there for all to see—and that is just in areas that come within the ambit of the committee I am on. I do not think it will be too long before the government will be announcing the appointment of `Commissioner Reith', or `Commissioner Moore-Wilton' or some other similar travesty.


Senator Abetz —There's an idea!


Senator MACKAY —Senator Abetz says that is an idea. In order that we can move into committee I will conclude by saying that Labor will not be supporting this bill because it is a bad bill, an unjust bill and an unworkable bill. We have never supported this legislation aimed, as it is, at grabbing power from the states—something I think is quite extraordinary, given this government's form, apart from the frolic on health and hospitals—and diminishing the rights and protections of working people. We have never supported it and we are not about to start now.