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Andrews defends IR changes -

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(generated from captions) Well, it was revealed today that under the proposed IR laws companies will be able to dismiss workers for organisational reasons.

If a job disappears for economic, technological or structural reasons, employees will have no legal basis for claiming unfair dismissal. The man responsible for the new laws is the Workplace Relations Minister, Kevin Andrews, and I spoke to him a short time ago to go through some of the detail.

Kevin Andrews, thanks for joining

Kevin Andrews, thanks for joining us again. Pleasure, Tony. Now is it

true that under your new

true that under your new legislation companies with more than 100

companies with more than 100 workers can avoid unfair dismissal claims

can avoid unfair dismissal claims if they can mount an argument that the

sackings are for operational

reasons? The law at the present

reasons? The law at the present time says that if a person is genuinely

made redundant, that is that there

is no longer a need for that person,

then they are no longer needed,

then they are no longer needed, they have to be paid their redundancy

payouts, whether it's an under an

award or an agreement. What we're

saying is that that will apply in

the future but if you get a

redundancy payout under the award

redundancy payout under the award or the agreement you should not be

the agreement you should not be able to double dip and claim an unfair

dismissal as well. There is a

difference here, though, to the law

isn't there? Because in the past

you've been able to sack people for

operational reasons but not to

operational reasons but not to avoid unfair dismissal claims when doing

so. That's the key difference,

isn't it? I'll come to the double

dipping issue in a minute. Well if

you are genuinely made redundant,

that is there is no longer need for

you in a job then that job end.

That will be the same in the future,

the same as it is at the present

time. The key difference here is

whether or not somebody can double

dip. If you don't believe you've

been dismissed for a genuine reason

you can now go to the Industrial

Relations Commission and you'll be

able to go to the Industrial

Relations Commission in the future

and the commission has made orders

where people have been reinstated

because it wasn't a genuine

redundancy. No, but there's an

absolutely key difference in the

legislation to what existed in the

past. The legislation says a claim

cannot even be heard if the

operational reasons argument is

accepted first. That's true, isn't

it? Well, it's true if there's an

operational reason which is another

way of expressing that there is no

longer a job to be done, that

longer a job to be done, that worker is no longer required. In other

words, it's a genuine redundancy,

words, it's a genuine redundancy, in those circumstances then a person

those circumstances then a person is entitled to whatever their

redundancy payment is, their

compensation under the award or the

agreement. Yes, but if it's an

operational reason and if that's

accepted by the commission, the

commission will not hear an unfair

dismissal claim. That's correct,

isn't it? That's true, but a person

can ask that commission, can go to

the commission and say, "I don't

believe that this was a genuine

situation. I think that the

employer was just making up if you

like, the so-called operational

reason. " The commission will

investigate that, will hear the

matter and if it's not convinced

this is a genuine operational

this is a genuine operational reason then the commission can make a

then the commission can make a range of orders. So the first argument is

going to be what is a legitimate

operational reason? As raid it in

the legislation operational reasons

can be economic, technological or

structural. Now they are extremely

general concepts. What do they

general concepts. What do they mean in the real world? What they mean

basically is that the job for which

the person was employed is no

the person was employed is no longer there. That is, that the reason

there. That is, that the reason for the person's employment is because

of economic changes or because of

technological changes. These are

things which happen now Tony, that

that job is no longer there. Let me

give you a hypothetical. Could a

business Isay I'm restructuring, ie

structural reasons to create a

cheaper workforce, so I'm replacing

all my permanent workers with

casuals? Under the current law and

the way in which this would operate

in the future it's very unlikely

that the Industrial Relations

Commission would accept that as a

genuine reason. What we're saying

is that sometimes there are changes

which occur in the nature of the

work or the reason for which a

person was employed which means

person was employed which means that a genuine redundancy arises. We're

saying in those circumstances it's

quite appropriate that the person

quite appropriate that the person be compensated under the award or the

agreement which they've got in

place. All we're saying here is

that they shouldn't be able to

double dip. It isn't, in fact, all

you're saying here because you're

opening up a general guidance for

the commission to look at

operational reasons and no-one

operational reasons and no-one knows exactly what "operational reasons"

are. They could be interpreted

are. They could be interpreted very widely by lawyers working for a

corporation which wanted to, for

example, casualise its entire

workforce? The ultimate safeguard

Tony is that the commission will

determine these matters, just like

the commission determines these

matters now. People are arguing

there should be a commission here

there should be a commission here to determine these matters. Well

here's precisely the circumstances

in which the Industrial Relations

Commission will continue to operate

and will continue to determine

and will continue to determine these matters. I mean, a smart lawyer

matters. I mean, a smart lawyer can say, "Well what does genuine mean?

say, "Well what does genuine mean?" Being a lawyer myself you can place

a whole lot of meanings on any word.

But in the end the real essence of

this is the commission will

this is the commission will actually make the determination as to what

the circumstances are. Let's recall

Billy the unemployed bloke in the

WorkChoice booklet. He's the one

who accepts a job on an AWA which

explicitly removes award conditions

for public holidays, rest breaks,

bonuses, annual leave loading,

bonuses, annual leave loading, shift and overtime loadings but at least

he's got a job. I imagine you can

remember him? I can, we

remember him? I can, we specifically put that example in, Tony. Why

couldn't, however, an employer for structural or economic reasons

decide to get rid of a whole load

decide to get rid of a whole load of employees and replace them with

Billies because it's cheaper to do

so? Well first of all it's not

necessarily cheaper to do that

depending on the industry, it costs

hundreds if not thousands to

actually take on a new employee, to

train them. Even in something as

simple as working in the fast food

outlet I'm told it costs some

hundreds of dollars just to train

and take on a new employee. These

are not things which are done to no

cost to an employer. Secondly,

employers today are looking for

every worker they can fine.

Wherever I go around Australia

people are saying we can't find

enough workers we're trying to hang

onto the workers we have got.

With respect, that's now in very

good economic times. If the

economic conditions change the

employers could be in a very

different situation and actually it

make very hard judgments on taking

cheaper employees over more

expensive ones and the Billies of

this world are going to be cheaper,

aren't they? Two things. One thing

that won't change Tony is the

that won't change Tony is the change in the demographic profile of the

nation. We have a shrinkage

occurring in the growth of the

workforce. The next generation of

workers has already been born. We

know the size of that and we are

facing workforce shortages now and

into the future in Australia.

Secondly, the west way that we can

protect Australians is to continue

to have a strong economy. We've

been through a history of cycles in

Australia where we've had a

recession or in worst cases a

depression every seven or eight or

ten years in this country. Now for

the last 15 years that hasn't

happened. That's partly because

we've put in place changes to

we've put in place changes to ensure that the economy remains strong.

The best guarantee to any working

person and their family in

person and their family in Australia is that we have a strong economy.

But if we do take the law of

But if we do take the law of history which you've just cited there, it

means that sooner or later a

recession will come again. And if

recession will come again. And if a recession comes again, why wouldn't

employers Idecide to employ people

who are much cheaper for them so

they can make greater profits?

Well, two things. One is that we

can do all we can to avoid

can do all we can to avoid recession in the future by putting in place

these sort of measures to ensure

that it doesn't happen. To ensure

that the economy remains strong.

that the economy remains strong. If we have a recession and we had one

in the late 1980s and early 1990s

the most rigid system of industrial

relations that we had then didn't

save us from that, didn't save a

million Australians from being

unemployed. We've got to do what

unemployed. We've got to do what we can do to try to ensure that the

economy remains strong and that's

what these measures are about.

Let's go back to that redundancy

question we talked about. I did

question we talked about. I did say I'd come back to it in some detail.

Why in that section of the detail,

if that's what it's all about - if

it's not about unfair dismissal

it's not about unfair dismissal laws for companies with more than 100

people - if it's all about

redundancy, why isn't there a

redundancy, why isn't there a single mention of redundancy in that part

of the legislation? Well, we act

upon the expert advice we get from

people who draft legislation. I'm

not an expert in drafting the

legislation but I do act upon the

collective advice of parliamentary

counsel and those that have looked

at it. That's what they say is the

best and the most clear way of

actually drafting this legislation.

I have to take their advice but

I have to take their advice but what I'm saying to you is that the

underlying policy and the intention

behind this is what I've spelt out.

But looking at it, there are pages

of legislation dealing with this

issue. Why didn't you Imake an

amendment stating, "The commission

shall not award compensation for

shall not award compensation for any worker who has already received

redundancy. " Therefore you could

never have double dipping, you

never have double dipping, you could deal with that in one line. As I

said, I take the advice of those

said, I take the advice of those who are expert in drafting as to the

best way to draft this, but the

policy behind it and the intention

behind it is what I've spelt out.

Do you agree with the Treasurer's

statement the removal of unfair

dismissal laws should be extended

dismissal laws should be extended to all companies? Well there was a

debate about this, which has been

publicised before around the

publicised before around the Cabinet table and there was a range of

table and there was a range of views around the Cabinet table. Without

ascribing positions to every member

of the Cabinet, the reality is that

we came to a collective judgment

we came to a collective judgment and our judgment was that the limit of

100, the parameters of 100 for the

exemption was an appropriate place

to draw the line between small and

medium business on one hand and big

business on the other hand. Let's

move on. The legislation is meant

to make working easier and fairer,

is that the case? Well the

legislation is about trying to

ensure as I said, we have a strong

economy. If we have a strong

economy then there will be more

economy then there will be more jobs and you've got a better prospect

that Australians are going to see

that Australians are going to see an increase in their wages. We keep

hearing the words easier and fairer,

that's a fairly legitimate way of describing what you're attempting

describing what you're attempting to do, isn't it? We're attempting to

say, as many others in the past and

Bill Keelty back in the early 1990s

who said the only way to ensure

future productivity and therefore

future economic growth is by people

making agreements and coming to

arrangements about their workplace

arrangements at the workplace level.

Let's take a child care worker as a

hypothetical case, call her marry.

Mary's employer wants her to go

Mary's employer wants her to go onto an AWA. The first thing Mary has

an AWA. The first thing Mary has to work out is whether the offer is as

good as her pre-reform wage

instrument. That's right, isn't it?

Well Mary will know what she's

getting by way of take-home pay at

the present time. If she's offered

an AWA she can compare and get

advice about it. It isn't her

take-home pay it's her basic

periodic rate of pay that's

periodic rate of pay that's involved here. She can't be offered less

than her basic periodic rate of pay.

That figure excludes overtime and

allowances, doesn't it? What she

allowances, doesn't it? What she has to have in any agreement in the

future is the fact that she gets

future is the fact that she gets the wage made at an hourly rate but

according to the award

classification which is relevant to

her industry and her job. 38-hour

ordinary week, four weeks annual

leave, sick leave, career's leave

and personal leave. So it does

exclude overtime and allowances,

exclude overtime and allowances, the figure that she can't receive less

than in her AWA, that's right,

than in her AWA, that's right, isn't it? Her overtime and allowances are

matters can be negotiated between

her and her employer. If they

her and her employer. If they don't negotiate it specifically the

relevant award provision applies.

She has to work out her preserved

classification scale and once she -

these are incredibly complicated

concepts, aren't they for someone

like Mary a child care worker?

Can I cut through all that? We

simplify all that. The Australian

Fair Pay Commission will establish

for all relevant awards and

classifications will have an hourly

rate. It will publish this. It

will have these details available

quite readily to Australians. In

fact what you're describing is the

great difficulty of the system at

the present time. What we aim to

the present time. What we aim to do is have a legislation where people

can find it. What's in the

legislation we're looking at?

What we'll have at the end of the

process is the ability of people to

go to a website and actually find

out what their classification is,

what their hourly rate of pay is

what their hourly rate of pay is and therefore much more easily have

access to it than they do now.

access to it than they do now. Part of the problem, particularly with

small employers, they often don't

know what it is that they're meant

to be paying a person because they

don't know the classification, the

award or the ins and outs of it.

That's the problem - 4,000 awards,

six duplicated systems - we're

trying to cut through all this.

It doesn't sound very uncomplicated

when you think about it. Let's say

Mary's overtime and allowances vary

from week to week or month to month,

now she's supposed to calculate

now she's supposed to calculate when negotiating her AWA, she's supposed

to calculate her allowances, her

overtime, her public holidays are

worth so that she can cut a deal

with her employer. How's she going

to do that? Well first of all she

can get advice. She can go to the

office of employer advocate about

advice about agreements generally.

She can have someone appointed to

represent her. If Greg Combet's

available he can represent her. A

bargaining agent appointed by an

employee has to be dealt with, has

to be respected by the employer.

to be respected by the employer. In fact it's an offence for the

employer not to deal with the

bargaining agent and beyond that

we'll have a beefed up office of

workplace services in relation to

compliance. So there's a whole

level of protections. Further than

that if the employer done have the

proper setout minimum standards and

conditions in the agreement then

that employer will be liable to

penalty. Let's say she doesn't have

the advantage of having someone to

negotiate on her behalf, like many,

many people is put in a position by

her employer where she has to deal

face-to-face with the employer. face-to-face with the employer. Who do you think would be at the

greatest advantage - Mary, or the

corporation she works for? Well

Tony, the false premise in the

question is that she has to deal

face-to-face with her employer and

has not got recourse to the

assistance of someone else. She

assistance of someone else. She has got recourse to the assistance of

someone else. She can go to a

union, she can go to her accountant,

she can go to anybody. Once she's

appointed that person - we'll be

making this widely known - once

she's appointed that person the

employer has to respect that

appointment. You're aware I take it

that under a lot of AWAs at the

moment employers discourage

moment employers discourage anything but face-to-face negotiations? And

they've got in a way balancing

against that the fact that other

people might want that job. Well

face-to-face negotiations is

face-to-face negotiations is usually the way in which people come to

arrangements about their employment.

I'm sure all your employment

negotiations have been face-to-face.

All of mine in the past have been.

That's pretty common. All I'm

saying is though is that we

recognise that an employee might

need assistance and because we

recognise that we've put into the

law a provision which says that

employee can require assistance and

that assistance cannot be denied by

the employer. For the employer to

deny someone the assistance that

they want in these circumstances is

something which is unlawful and

there'll be appointments. Kevin

Andrews, there's a lot to think

about in all of this detail. We

thank you very much for taking the

time to come and try to explain

time to come and try to explain some of it to us. I'm sure we'll have