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Monday, 22 March 2004
Page: 21553


Senator ABETZ (Special Minister of State) (7:43 PM) —I thank all senators for their contributions to the debate on the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2]. This is the second time that the Senate has had the opportunity to consider this bill. The bill was previously rejected on 11 August 2003. The government has put the bill forward again because the case for reform is overwhelming and should not be further delayed or frustrated. The cornerstone of the bill is to provide for a national approach to unfair dismissals under the Workplace Relations Act. This is achieved by removing the requirement that employees must be covered by federal awards in order to access federal remedies. Deleting the federal award requirement will allow the dismissed employees of a company to challenge their dismissal in the Australian Industrial Relations Commission as being harsh, unjust or unreasonable.

Such terminology did not flow from Senator Mackay's mouth or from those opposite in their contributions to this debate, as they sought to so grievously misrepresent what this bill is all about. Instead, Senator Mackay is trying to write gags in her office, which seems to be a problem with Tasmanian Labor senators—we recall Senator Sherry having thought for eight years to come up with the funny one-liner, `Work till you drop.' Of course, the funniest one-liner was the $8 billion super blooper made by Senator Sherry. Having spent far too much time trying to think of the funny one-liner, he forgot the detail of a mere $8 billion in his super policy. Similarly with Senator Mackay tonight, we have heard some funny one-liners. Instead of sitting in her office trying to think of one-liners, had she actually bothered to read the legislation—and I draw to her attention section 170CK(2)(f)—she would know that pregnancy is a ground for unlawful dismissal. Here is another classic case of the Labor Party being lazy, not doing their research, trying for the funny one-liner and misrepresenting what the law is at the moment.

Senator Mackay indicated in her contribution that she had contacted Minister Jackson. It is no wonder she got the response that she did, because Minister Jackson is not exactly the sharpest tool on the rack when it comes to the state ministry in Tasmania. In February 2003 the Minister for Employment and Workplace Relations wrote to state workplace relations ministers explaining the intent of this bill and inviting comments. The bill was also discussed at the meeting of the Workplace Relations Ministers Council on 28 March 2003. I understand there was recently a ministerial council which Minister Jackson could not be bothered to attend. Of course, with that history it is all the federal government's fault as opposed to, as we all know, Minister Jackson's incompetence in Tasmania. There was also a Senate committee inquiry into this. If it were a matter of such great importance I am sure that Labor senators on that committee would have consulted with the state Labor governments and ministers around Australia. I cannot blame them on this occasion for not wanting to consult with Minister Jackson, because quite frankly it would have been a waste of time.


The ACTING DEPUTY PRESIDENT (Senator McLucas)—Order! Senator Abetz, I request that you be a bit more careful with your language.


Senator ABETZ —About it being a waste of time to consult with her?


The ACTING DEPUTY PRESIDENT —You have referred on a number of occasions to Ms Jackson in a way that I think reflects poorly on her. I think that is unparliamentary. I ask you to be careful with your language.


Senator ABETZ —For the purposes of this debate I will accept that. With great respect I suggest to the chair that she have a look at some of the other rulings, because question time will be cleaned up considerably from the Labor Party's point of view, if that ruling, like terms of incompetence, is not allowed. With respect, I think that is being a bit precious but I accept your ruling for the purposes of this debate.

We then had the allegations of the thuggery on the waterfront by those opposite. We know where that thuggery came from: the Maritime Union of Australia. Madam Acting Deputy President, take the tip that it was not the workers on the wharves with the dogs trying to break out to attack the MUA. It was the MUA trying to break in to cause their thuggery and havoc on the machinery and the workers who were going about their lawful duty behind the fences. Whilst the Australian Labor Party continue to come into this place and champion the thuggery of the Maritime Union of Australia, they are not fit to govern because they are prepared to do anything for the support of the Maritime Union. We know how important it is, because it was the Maritime Union that saved Senator Kerry O'Brien's endorsement with the Labor Party in Tasmania in recent times.

In this discourse we also heard from Senator Mackay about the World Heritage area and the alleged lack of funding. Isn't it amazing that the state Labor government in Tasmania says it does not have $900,000 to support the jobs so necessary for the World Heritage area, but it has $500,000 for a new office for parliamentary secretary Katherine Hay and the hundreds of thousands of dollars required for a new minister Mr Ken Bacon. The simple fact is that the state Labor government in Tasmania are more interested in creating ministerial jobs than they are in creating jobs in the World Heritage area.

Senators need no reminding that this parliament has debated unfair dismissal laws since the Keating government first legislated for an unfair and unworkable set of arrangements in 1993. I remind those opposite of the first parliamentarian to fall foul of these very laws. Was it one of those obnoxious coalition MPs? No, it was not. It was one of their own—Con Sciacca, the member for Bowman—who fell foul of these very laws. That is how stupid and unworkable they were. Even Labor members were horrified to find out how draconian the legislation was when it happened to be applied to their own work force. The Keating government's partial and untidy retreat from those laws left Australia with unfair dismissal regimes in each state as well as a federal law that is still regarded with deep suspicion by most businesses. For the record, I do not know of any employer that asks, `Who can we sack today?' In fact, the reason that they employ people is to help promote their business activities. All employers want to have a good and workable relationship with their employees. When the relationship breaks down, for whatever reason, it is appropriate that an employer can take appropriate action on the basis that it is not harsh, unjust or unreasonable.

Since 1996 the present government have sought to provide a fairer go all round for employees and employers, while simplifying the means for handling unfair dismissal claims. Progress has been slower than the community would have liked, and every year Australian industrial tribunals still deal with 16,000 to 17,000 unfair dismissal claims. Currently, about 40 per cent of these claims are lodged with the AIRC. Passage of this bill would break the institutional gridlock that makes the handling of unfair dismissals in Australia perplexing and costly for both employers and employees. If passed, the bill would increase the coverage of federal unfair dismissal laws from about 50 per cent to 85 per cent of all Australian employees. Other workers, including independent contractors and deemed employees, would still have access to remedies and protections under relevant state laws. Few seriously dispute the need for a fresh approach. When the bill was first debated in the House of Representatives, the former Minister for Employment and Workplace Relations, the Hon. Tony Abbott, said:

Maintaining six separate industrial jurisdictions makes as much sense as keeping six separate railway gauges.

The former shadow minister, the Hon. Robert McClelland, expressed a similar sentiment, saying:

... it is silly, quite frankly, to have six disparate industrial relations systems, and the Labor Party recognises that.

Other ALP speakers have echoed that view during debate on this bill. The Australian Democrats workplace relations spokesman, Senator Murray, has also expressed strong support for one national industrial relations system, including for a single set of unfair dismissal laws. He reaffirmed that support in a speech delivered to the Australian Mines and Metals Association national conference just last Friday.

The cost and confusion generated by the six different arrangements that currently operate across the country has been widely acknowledged by business and academic commentators and in the wider community. For instance, independent research by the Melbourne Institute of Applied Economic and Social Research shows that one-third of Australian businesses do not even know whether their workplace relations are covered by state or federal law. Other independent research conducted by Don Harding of the Melbourne institute reveals that the current unfair dismissal arrangements add an estimated $1.3 billion annually to the costs of running small and medium sized businesses. Part of that cost is reflected in the madness of maintaining six different unfair dismissal laws, with the forum shopping and double handling that that entails.

It is deeply disappointing that we appear to have again reached a stalemate over this very important and potentially ground-breaking bill. This stalemate comes despite the government expressing a willingness to consider a raft of Democrat amendments including: delaying the commencement of the bill; having concurrent appointees to the AIRC handle unfair dismissal claims, subject to agreement with each state; removing the provisions in the bill that treat dismissals of small business employees differently; and modifying the bill's treatment of exceptional circumstances for the purpose of determining whether a redundancy may give rise to an unfair dismissal. The government was also prepared to consider a number of wide-ranging Democrat proposals, including: new definitions of `employer' and `employee' that would include deemed employees and independent contractors; and preserving, for a time, state based unfair dismissal remedies for casual employees.

Despite the government's willingness to explore the opportunities for sensible compromise, Senator Murray—for all his eloquent words about the importance of moving to a unitary system in his recent speech to the AMMA—is still not satisfied, apparently closing the door to reform with the two-line observation:

The Democrats have been talking at length with the Government to find common ground. The sticking point is that while the Democrats desire a unitary Industrial Relations system, we will not do so at any cost.

One might ask: what would be an acceptable cost? For their part, the Democrats want the government to agree to an amendment that would reduce the period of exclusion from unfair dismissal remedies for short-term casual employees. The Democrats want to allow casual employees with only six months service access to federal unfair dismissal remedies. The government believes that the present 12-month threshold draws an appropriate distinction between short-term and long-term casuals. More to the point, this is the standard that has applied at the federal level for the past eight years. The other Democrat proposal the government cannot accept is for casual employees to continue to be able to access state unfair dismissal remedies. This would make a mockery of the concept of a national system and would reduce its coverage to fewer than three-quarters of employees. Processes and the remedies available would vary from state to state, which would increase complexity, add to costs and provide a possible vehicle for forum shopping between the state and federal tribunals.

In agreeing to consider many of the Democrats' proposals in relation to this bill, the government was conscious that it would be putting on hold the proposed changes to the federal law contained in this bill and in the fair dismissal bill, which has been twice rejected by the Senate during the life of this parliament. This would involve a significant shift from the government's preferred position, but when reasonable compromises have needed to be made in securing better laws then the government has always been prepared to make them. The Australian Democrats, however, have continued to insist on further amendments which would not only reduce the scope of this bill but also make significant changes to the federal law as it has operated for the past eight years. This the government cannot accept. It is a pity the government's constructive approach and willingness to compromise have not been reciprocated. The Democrats appear willing to support a national system for unfair dismissal only in theory, not in practice. I call upon non-government senators to give a little ground, to agree to a national approach to unfair dismissal laws and to support this bill, which I commend to the Senate.

Question agreed to.

Bill read a second time.