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Thursday, 12 December 2002
Page: 8035


Senator SANTORO (11:38 PM) —I was going to make a more substantive contribution during the general second reading debate but, given the way that business is going in this chamber tonight—understandably—with speeches being incorporated, I will not proceed with that contribution other than to make a few remarks about the amendment before us and a few general points based on some experience that I had in another jurisdiction.

What we are debating with this particular amendment and the bill as a whole is one of the essential ingredients for business success. Senator Murray touched on the issue when he suggested that, by knocking out the qualifier and giving small business some definition in terms of the period that they may be confronting, we will be providing small business with a greater degree of certainty. He sought not to be patronising to small business, but the reality is that small businesses do like simplicity because they do not have the resources of larger businesses, whether they be accounting, legal or other representative resources, in order to go out there into the Industrial Relations Commission and argue the finer points of definition. If we are trying to create, as Senator Murray suggested, a simpler operating environment for small business while still maintaining a sense of fairness within the laws that we are considering here tonight, particularly the unfair dismissal laws, then that is a good thing.

The point of view that I am coming from is the experience that I had when I was the Minister for Industrial Relations in Queensland when, in May 1997, I announced and subsequently was able to put through the Queensland parliament—where, in reality, there was an upper house with one Independent who held the balance of power; I had to argue with her privately and subsequently within the parliament on some of the points that we are arguing here tonight in order to convince her that what we were suggesting was fair—a 12-month exemption from the application of unfair dismissal laws for small businesses with 15 or fewer employees.

Just so that honourable senators here are able to understand, it was not a scorched earth policy that I was putting through the Queensland parliament. That exemption did not apply, for example, where the dismissal was for an invalid reason such as race, union or non-union membership or temporary absence due to illness or injury. In other words, we had some very real protections within that exemption against dismissal as a result of invalid reasons.

But what that particular law did—and I have started talking to some of the senators within the opposition and the minor parties about this—was encourage a boom in full-time, casual and part-time employment in Queensland, particularly full-time employment. During the period that that law operated, 40 per cent to 45 per cent of all full-time jobs that were created by industry in Australia were created in Queensland.

I notice that Senator Ludwig is in the chamber. He may recall the many times, both within the parliament and outside the parliament, that I called on the Labor Party and the union movement to bring before the parliament—or indeed any other forum that they chose—one example of where an employee had been badly affected by the application of those particular unfair dismissal laws in businesses where the number of employees was under 15.

It is a matter of public record that I made that call. Not once was an example put forward where a Queensland worker was able to demonstrate that they had been unfairly dismissed or unfairly treated but had had no recourse to law as a result of the application of that law. The reason why I made that call was that when I introduced the bill, which later became law, the support I was given by the then Independent member for Gladstone was conditional on the laws not disadvantaging Queensland workers. That particular law encouraged a boom in employment in Queensland. That is not a boast by somebody who was intimately involved with the introduction and the application of that law; it is something that is statistically provable.

When we are talking about 12-month exemptions as opposed to any other period of exemption, in at least one jurisdiction where that exemption worked unfettered—and we are talking here about small businesses employing 15 employees or fewer, irrespective of whether they were part time, full time or casual—that law did demonstrably work. The challenge that I issued for just one example to be talked about either in the parliament or anywhere else—any other forum that the union or the Labor Party chose—was to the best of my knowledge never taken up and still has not been taken up.

Looking more specifically at the bill under consideration tonight, since it came into effect in December 1996 and the 12-month rule has applied, there has been phenomenal growth in casual employment. I hear members of the opposition saying that, unless we cut it down to the six months that applied under Labor law, an unfair situation will be created and there will be—to paraphrase Senator Collins's words—uncertainty created within the workplace, particularly for casual workers. One of the main contentions of senators on this side of the house is that you really must have jobs before the jobs become uncertain. The 12-month rule has applied for the best part of the period since December 1996, with phenomenal growth in casual employment. In Australia these days we have almost two million casual employees, which is a high number by any measure compared to other nations. Nevertheless, it is very applicable to the Australian situation where small businesses operating in the economy appreciate the flexibility of our laws in giving them a very strong capacity and ability to employ on a casual basis.

One senator has said that the voice of small business has not been heard in objecting to the Federal Court decision which reduced the exemption period to six months. The point we make is that these days small business really does not object; it just basically acts and stops employing. We can either provide small business with greater incentive to employ by creating more flexible labour market conditions within a fair legislative framework that protects employees from unfair dismissals or we can create an operating environment which will discourage them from employing further.

I strongly support the government's position. I was pleased to hear the minister respond in the way that he did in terms of the compromise that is being offered by those opposite. I have not heard much evidence in this place tonight, nor in the other jurisdiction with which I have some familiarity, of rampant abuse or of unfair situations that by any standard could be regarded as unbearable. But I do know from watching the performance of this government, admittedly from afar in Queensland before I came to this place, that we have under this government, as we did under the government that I was a member of when laws much stronger than the one that we are considering here tonight applied, record employment growth at all levels—part-time, full-time and casual. With that comes the job security that comes with a strong economy and with that growing and strong economy comes job creation. You just cannot have job security unless you have jobs being created and taken up at the rate that have been taken up under the IR regimes that the government legislation and the government initiatives are seeking to put back in place.