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Tuesday, 28 June 1994
Page: 2148

Senator CHAPMAN (10.00 p.m.) —by leave—I move:

6.Clause 8, page 5, proposed subsection 170EE(3), lines 27 to 42, omit the subsection, substitute the following subsections:

  "`(3)Subject to subsection (3A), in working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment.

  "`(3A)The amount of compensation referred to in subsection (3), in respect of any employee, must not exceed the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect.".

7.Clause 8, page 6, proposed subsection 170EE(4) lines 1 to 6, omit the subsection.

8.Clause 8, page 6, omit proposed subsection 170EE(7), lines 16 to 19, omit the subsection.

9.Clause 8, page 6, proposed subsection 170EE(8), definition of "relevant award" line 21, omit the definition.

10.Clause 9, page 6, proposed section 170EI, lines 34 to 39, omit the section, substitute the following section:

"170EI. The regulations may prescribe a formula for the annual indexation of the amount stated in paragraph 170CD(2)(a) in accordance with increases in the average total weekly earnings (seasonally adjusted) of all employees in Australia.'.".

Of these four amendments, Nos 6 to 9 deal with clause 8 and relate to compensation, and No. 10 deals with clause 9 and is consequential on the passing of amendments Nos 6 to 9. These amendments deal with the mirror image of the access to compensation; they deal with the amount of compensation that is available to an employee who successfully prosecutes an unfair dismissal case.

  Amendments Nos 1 to 4, which I moved earlier in the evening—which unfortunately were not passed—dealt with access to the unfair dismissal provisions of the legislation. These latter amendments deal with the actual amount of compensation that can be paid in the case of a successful prosecution of an unfair dismissal case. As I said with regard to those earlier amendments, in this legislation there is a clear discrimination between employees under an award and employees not under an award with regard to access to the unfair dismissal provisions. Exactly the same discrimination is present in the legislation with regard to the amount of compensation that is available to employees who are under an award as against those employees who are not under an award.

  Under the legislation, where an employee who has been unfairly dismissed successfully establishes that case of unfair dismissal but the court does not order reinstatement, then compensation is payable as an alternative. Under the bill, there is discrimination between award and non-award employees with regard to the amount of that compensation. The bill says in clause 3(a) that no employee can receive more than six months compensation, but that in addition, under 3(b) non-award employees cannot receive more than $30,000—that is, the applicable amount.

  In other words, an employee under an award can obtain six months wages or six months salary as compensation with no upper limit on the amount of compensation payable. Yet an employee who is not under an award is limited to a maximum of six months salary or wages, and is also subject to an upper limit of $30,000. So if the six months payment would be more than $30,000 that employee can only take the lesser of the six months pay or the $30,000 upper limit. So there is again unfair discrimination between award and non-award employees. The income cap, as we have already found with regard to non-award employees, is $60,000 and, therefore, the limit to any payout to a non-award employee is $30,000.

  Amendments Nos 6 to 9 are a combination of amendments that give effect to our intention to ensure that this discrimination between award and non-award employees is removed from the legislation. That simply limits compensation to a six months payout; it does not have the additional limit on non-award employees of a $30,000 cap. We believe that fairness requires that these particular amendments be passed, because the discrimination against non-award employees ought to be removed from the legislation.

  I assume that we will hear from the minister on this. I put to him the argument that the discriminatory compensation provisions in this legislation as it currently stands should be removed. Where there is no reinstatement and compensation is paid instead, the provisions applying to award employees on the one hand and non-award employees on the other should be the same. Provisions for both should apply to a maximum annual salary of $60,000 with, therefore, a maximum payout of $30,000, or six months wages.

  In relation to my earlier amendments, the minister said that there is not much point in having a cap with regard to access to the compensation provisions. I expect he will promote the same argument in relation to these amendments. It is a re-run of the argument put in the other place by the Assistant Minister for Industrial Relations, Mr Gary Johns, when he told the House of Representatives that people employed on awards and earning more than $60,000 a year comprise only 0.25 per cent of the work force. Yet this government wants to have special discriminatory provisions in favour of that elite 0.25 per cent. You cannot get much more elite than that—the 0.25 per cent club.

  I would like the minister to tell me who are the people who are exempted from the capping provision by having no cap applying to employees under awards. As I understand it, in Australia we now have a work force of 8,718,700 people; 0.25 per cent of that represents 5,449. I would like the minister in his response to tell me who are these people that earn—

Senator Robert Ray —Do you want their addresses as well?

Senator CHAPMAN —It would be handy if the minister could provide them to me, yes, because there is this relatively small group of people who are employed under awards and yet are earning more than $60,000 per annum. Are they union officials? Are there any women among them? Are there any bus drivers, any carpenters, any plumbers among them? Just who comprises this elite club—the 0.25 per cent club—who are on award conditions, yet earn more than $60,000 a year, and who will have special provisions made for them under this legislation that do not apply to non-award employees earning similar relatively high levels of income?

  I believe it is incumbent on the minister, it having been indicated by his colleague in the other place that they are in fact only 0.25 per cent of the work force, to tell me who indeed these people are. The government in pushing forward this legislation really ought to identify who it intends to benefit with this particular exemption. Is it ordinary workers who are going to benefit from this exemption? That is simply not the case when we are talking about incomes in excess of $60,000 per year. Or is it the trade union fat cats who seem to be the masters of this government's industrial relations legislation who are going to benefit from this particular exemption?

  I believe that it is the trade union fat cats who probably make up this 0.25 per cent who will be benefiting from this exemption. If that is not the case, I want the minister to tell me who is, because this legislation in its present form is completely discriminatory and that discrimination ought to be removed. It is the purpose of our amendments to remove that discrimination and I urge the support of the committee for them.