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Thursday, 12 December 2002
Page: 8027

Senator LUDWIG (10:48 PM) —by leave—I move opposition amendments (1) and (2) on sheet 2784:

(1) Schedule 1, page 3 (before line 6), before item 1, insert:

1A At the end of subsection 89A(2)


(u) issues arising in respect of a period for the purposes of paragraph 170CBA(3)(a).

(2) Schedule 1, item 1, page 4 (lines 25 to 27), omit paragraph (a), substitute:

(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, unless a shorter period is specified in an award or certified agreement; and

Amendment (1) adds the words `issues arising in respect of a period for the purposes of paragraph 170CBA(3)(a)'. It provides for the commission to vary safety net awards to deal with qualification periods for casual employees to make an unfair dismissal claim. This would allow the commission to insert into award provisions those issues about proposing a six-month qualifying period. This amendment is, however, contingent on amendment (2) being accepted as well, because it sits with that. This makes the qualifying period for a casual for an unfair dismissal claim six months. The government proposed 12 months. However, as I have said, this period can be reduced when you look at the amendment in item 1 that I propose to move.

It is worth while looking at the short history. The government proposes to exclude casual employees with fewer than 12 months regular and systematic service and who do not have a reasonable expectation of continuing employment. As far back as 1994, the minister acknowledged in his second reading speech that Labor had introduced an exemption for casual employees engaged for a short period. What he failed to mention was that, in Labor's view, a short period was six months, not 12 months. In 1996 the government broadened the exclusion to 12 months and shortly thereafter Labor moved to disallow the government's amendment. We did so on the basis that 12 months is not, in any reasonable view, a short period of casual employment and, as such, a period that would promote further casualisation in the work force.

If I recall correctly, the Democrats agreed with the government at the time to allow the government's amendment to stand. However, the Democrats did so on one important condition, if the record is to be borne out. That condition was that the then minister review the regulation after 12 months and that the Democrats be given an opportunity to review empirical evidence of the operation of the exclusion after that period. It is 50 months since that occurred and, from the opposition's perspective, we have not seen or heard from the Democrats or from the government any of the substance of what we have just put down. Whether or not the government met the Democrats undertaking remains to be seen. We suspect not, but we are happy to hear from the Democrats as to whether or not that was ever the case.

It is important from our perspective to be clear on the impact of the 12-month exclusion. Australia is close to leading the world in the trends towards casualisation. It is not at all a good thing in which to be leading the world. According to the ABS, in 1982 there were 700,000 casual employees in Australia and by 2000 there were 2.1 million casual employees, which now represents more than one-quarter of the labour force. The reasons for this trend are complex and its consequences are profound, in our view. This government has shown very little interest in exploring some of the more complex reasons. It has, as I have said, failed to really address what the Democrats asked some 50 months ago. It has failed to demonstrate any ability to grasp the significance of the figures that I have just mentioned or the need to address the issue. But there can be no doubt, even from the government, that the federal legislation should not provide an artificial incentive to employers to prolong the period for which a person is employed as a casual. We say that the government's 12-month exclusion has precisely such an effect. That effect is that, if a casual employee has been working for six months and has every expectation that that employment will continue indefinitely, it is likely that the government's 12-month exclusion is playing some part in the employer's decision to maintain the employee's casual status.

We think the government will argue that it has addressed this concern by denying the benefit of the exclusion to an employer where a substantial purpose of holding the employee as a casual is to avoid their obligations under the act. As I recall, the Democrats extracted this exemption from the government—at least that is what the record seems to demonstrate. As I understand it, the opposition did not regard it as adequate protection at the time, and it certainly does not now. In the first place, it does nothing to correct the message that 12 months exclusion sends to employers. In the second place, it only has any real effect if an employee can persuade the commission or a court after lengthy evidence and argument that, whatever the reasons advanced by the employer for keeping the employee's status casual, a substantial purpose was to avoid the operation of the act. The opposition has moved the amendment to restore the six-month period and to allow the commission the flexibility to deal with it. Our amendments will allow this period to be reduced by agreement between the employer and employee in an award or certified agreement. We say this is consistent with the government's own principle of allowing employers and employees to agree on terms of employment in the workplace.