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Monday, 11 August 2003
Page: 13042


Senator NETTLE (6:06 PM) —The Workplace Relations Amendment (Termination of Employment) Bill 2002 is the latest attempt by the Howard government to undermine the rights of working people. The government seems unable to accept the unequivocal view of the Senate majority. The Senate has rejected its many attempts to erode the rights of people who are unfairly dismissed by small business employers, so the government has dreamt up a new plan of attack.

The bill proposes to extend the Commonwealth's jurisdiction in unfair dismissal laws from 50 per cent of employees to around 85 per cent, or seven million people. At the same time, the Commonwealth government is seeking to diminish the rights of workers who are unfairly dismissed and take away the rights of redress that these workers currently have under state laws. Because the extension of federal jurisdiction relies on the Commonwealth's corporations power in the Constitution, employees of unincorporated businesses will not be covered. This means that around 15 per cent of employees will remain outside the so-called national unified scheme.

The Commonwealth, after having foisted this law on the states without consultation, wants the states to replicate the federal law or refer state powers to the Commonwealth so that these excluded employees can be picked up by the federal scheme. At the same time as the bill seeks to raise additional barriers for employees who make a claim for unfair dismissal, it weakens the remedies for workers employed by small business who are unfairly dismissed and it disadvantages casual employees, who will be subjected to a 12-month waiting period before they can make a claim for unfair dismissal.

The Greens will not support measures to undermine the protection of working people. We have been presented with no evidence that justifies discriminating against small business employees when it comes to protecting them against unfair dismissal, or their seeking reinstatement or compensation for wrongful loss of employment. The Australian Greens support the concept of a national industrial relations system that delivers good outcomes. That clearly is not the case here. We might have been inclined to consider more favourably supporting the part of the bill that extends the Commonwealth's powers had the bill improved protection for all employees and not been linked to another bid to undermine the rights of employees who are unfairly dismissed.

In effect, the government is using the expansion of its powers as a cover for extending its objectionable policies. Given the government's record, it is difficult to imagine that it could propose any industrial relations measures that would deliver good outcomes. The Minister for Employment and Workplace Relations, Tony Abbott, has said:

Greater uniformity in unfair dismissal legislation will provide substantial benefits for employees and employers through reduced complexity and greater certainty about the application of legislation.

It is worth noting that the Howard government's desire for a unified industrial relations system sits oddly with the government's general approach of divesting itself of responsibility for, and leadership on, a range of policy matters that rightly demand Commonwealth involvement—for example, the protection of the environment. The idea of increasing the role of the Australian Industrial Relations Commission, something the Australian Greens support, is also at odds with the government's history of trying to scale back the commission's relevance by stripping it of powers such as the power to settle disputes.

More significantly, this bill would not deliver what the government and the minister claim to be its main goal: a national system. On the one hand, the government wants to capture most Australian workers within the ambit of the federal scheme while, on the other, it wants to treat some employees—that is, those employed by small business—less fairly than others. This contradiction is another reason the Australian Greens think the minister is simply using the extension of Commonwealth powers as a cover for what he has been unable to achieve through stand-alone legislation: exempting small business from federal unfair dismissal laws.

The bill certainly does not remove the confusion and complexities of the dual industrial relations system that the minister claims is its driving motivation for the legislation. On the contrary, even if the bill were to pass it would exclude a significant number of employees of, for instance, sole traders, charities, unincorporated companies and state government bodies. In addition, some businesses would be subject to a federal unfair dismissal regime while other aspects of their business would be subject to state law. Then there would be two types of federal unfair dismissal law: a lesser standard of protection for people employed by small business and another standard for everyone covered by the Commonwealth legislation. Far from being national and unified, the scheme would be fragmented and confusing.

The Greens are also concerned about the lack of consultation with the states on this and Minister Abbott's high-handed approach of imposing this system on the states. Were the federal government genuine about wanting a national scheme, it would have sought to work cooperatively with the states. So what is the government really up to? The Greens believe that it is more of what we have come to expect from the coalition: shifting the balance of power away from employees and in favour of business. Not content with proposing to expand the Commonwealth's jurisdiction in unfair dismissal to seven million employees, the government wants to prohibit those people who are brought within the scope of this bill from seeking remedies for unfair dismissal in state schemes.

This bill would further undermine the rights of all employees covered by the federal regime by restricting the circumstances in which an employee of any business can take action against unfair dismissal, including where an employee is dismissed purportedly on operational grounds. We can find no check proposed to prevent this provision from being abused. This would appear to be a minimum requirement, particularly in light of the ACTU's submission to the Senate Employment, Workplace Relations and Education Legislation Committee inquiry into this bill, which identified employers' use of operational requirements to target particular employees on grounds including age and union activity. The bill also reduces any back pay component of compensation where a dismissed employee has had the opportunity to earn income from another source since being sacked.

Even further restrictions are imposed by this bill on employees of small business. It should be noted, as others have, that the number of unfair dismissal cases against small business has fallen in recent years from 3,218 cases in 1998 to 2,168 cases in the year to last November. Claims against small business as a percentage of all claims also fell, from 40 per cent to 30 per cent, in the same period.

Nevertheless, the government wants to go further, imposing additional restrictions on employees of small business including doubling from three to six months the waiting period before an employee of small business can take action if they are unfairly dismissed; denying an employee their day in court by allowing the Industrial Relations Commission to dismiss an application on the papers while requiring the commission to consider the cost of the employer attending the hearing; halving the applicable maximum amount of compensation that a dismissed employee can be granted to either three months salary or, for non-award employees, $20,400. Also, the commission can be directed to consider an employer's capacity to pay when determining a remedy or an amount of compensation, a provision that those working outside small business do not have to encounter. In addition, there would be the removal of the Industrial Relations Commission's ability to consider whether an employee was warned about unsatisfactory behaviour prior to being dismissed. This is particularly alarming when combined with the absence of a requirement for an employer to warn an employee about unsatisfactory behaviour before sacking a worker. It is only fair and reasonable that an employee has a right to be told that their behaviour is unsatisfactory and be given the opportunity to address an employer's concerns before being dismissed. The absence of such a direction and the removal of the commission's ability to take such a matter into account further demonstrate how this bill undermines the protection and rights of working people. So the government is trying to raise the hurdle for employees who are unfairly dismissed and reduce the compensation that they may be awarded.

On top of being unfair, the focus of these provisions is misdirected. They are aimed at reducing costs to small business and they do nothing to discourage employers from sacking people unfairly. In fact, these claims that make it harder for an employee to take a claim against their employer where they believe they have been unfairly dismissed could encourage some employers to abuse their power. The New South Wales Labor Council has provided a number of examples about how workers protected by the state unfair dismissal law in New South Wales would be disadvantaged under this bill, and, as a New South Wales senator, I would like to share those with the Senate. One is about an employee who injured their shoulder at home and was given medical clearance to return to work. They were dismissed after the company's nominated doctor said that returning was a safety risk. The employee's union made a successful application for the person to be reinstated under a state provision that protects injured workers. No such provision exists in this bill.

Another employee was moved to a permanent position after working as a casual but was then sacked five weeks later for refusing to move to night shift work. Her letter of employment did not contain a probationary period so she was able to take a claim for unfair dismissal, which she won. Under the federal bill this would have been impossible because of the compulsory three-month probation period when she went to a permanent position.

Under this legislation employees of small business who are unfairly dismissed would be excluded from lodging a claim until they have been employed for at least six months, whilst casual employees would be excluded for 12 months and only eligible if they have been employed on a regular and systematic basis. In New South Wales there was a casual sales assistant in a small bookshop who was dismissed on the basis of a lack of hours available at the same time that the employer was advertising for new casual positions. The employee was able to settle the claim for unfair dismissal under the state scheme but would not have been able to do so under the federal scheme because they had not been employed for 12 months.

In the New South Wales law there is no qualifying period for casual workers who are employed on a regular and systematic basis. For those casual workers who are not employed on a regular and systematic basis the exclusion period is six months. I know that in other states, in Western Australia and Tasmania, there is no exclusion period for casual employees. Given the growth of casual work, and particularly the casual work carried out by female workers, the 12-month exclusion period for casual employees would open the way for unscrupulous employers to exploit casual workers further and encourage greater use of casuals rather than permanent employees so as to avoid the application of this law. In addition, in New South Wales workers in regional and rural areas—and this may apply to other states as well—under this law would have to travel to the capital city to attend hearings before the Australian Industrial Relations Commission, whereas currently in New South Wales the Industrial Relations Commission provides for hearings in towns outside Sydney.

On top of the long list of objections to this bill there is a cost to implement it. The government has set aside $16.8 million over four years for the expansion of the Australian Industrial Relations Commission that would be required to implement this proposal. The Greens believe this is a terrible waste of public funds not least of all because it duplicates existing state resources that will still be required even if the proposed federal expansion in the area of unfair dismissal laws were to proceed. The Greens say that the $16.8 million could be far better spent investing in job creation and training and it would yield a far better return than investing in a scheme that the government argues with a straight face will encourage jobs growth by making it easier to sack people.

The Minister for Employment and Workplace Relations has made it clear that this bill is the start of the coalition's project to centralise industrial relations under the Commonwealth. Of course his predecessor, Peter Reith, embarked on a similar undertaking, without much success aside from the support that he obtained from the former Victorian Liberal Premier, Jeff Kennett, and many Victorian workers continue to suffer as a result. In the absence of cooperation from the states, Minister Abbott has decided to force this dramatic shift onto the nation. This approach is not conducive to good outcomes. Regulation should protect the rights of the parties to a workplace relationship, guard against exploitation, and deliver fair wages and working conditions. A regulatory regime should act as a counterweight to the power an employer has over an employee, a power imbalance inherent in most working relationships.

The Greens are attracted to the idea of all employees having the same high standards of protection and rights under a national regulatory regime, but we cannot support this move by the coalition government because it does not deliver a unified national scheme; rather, it is a `not quite' national regime with lots of exemptions. What it does provide comes at too high a price, reducing the protection and rights of working people. That is because the government has confused long-term goals with short-term self-interest and political expediency. The government's determination to force its views on the states rather than to approach such a significant undertaking as a national IR system in the spirit of cooperation strengthens our conviction that the coalition's strategy is counterproductive. As such, the Australian Greens will be opposing this bill.