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Monday, 11 August 2003
Page: 13062


Senator CHERRY (8:38 PM) —There is no risk in Democrats amendment (3), and I commend Senator Murray for bringing it forward. The worst that can happen with this amendment is that a person is found not to be an employee for the purposes of section 170CB. If that happens and they are picked up by state legislation, they will have a right of recourse in respect of unfair dismissal under that state legislation. Whilst this is a covering the field piece of legislation, it only covers the field in respect of employees as defined by this legislation. If any categories fall outside the definition in the Democrats amendment, they are picked up under state law.

Having said that, I am quite convinced that the amendment we are moving today goes much further in defining contract employees than the broad definition of employee under the state laws of South Australia, Queensland and New South Wales which I have checked, although I concede Senator Hutchins's point that the schedule of deemed employees at the back of the New South Wales act does go much further. In respect of that list in New South Wales law, we were conscious of the fact that, whilst the definition of employee in the New South Wales act is fairly old-fashioned and narrow—and I think this definition is much broader—there is that great long list of deemed classes of employees. That is why we put in 170CBA(2)(h), which requires the commission to take into account the provisions of state law which would have applied if this act did not apply. So that large schedule in the New South Wales act is to be taken into account by the commission.

This is a very exciting amendment which we are moving. I do not usually get excited about industrial relations law but this particular provision does excite me as a senator for Queensland. If we pass this bill with this amendment and the next one Senator Murray will move in respect of casual employees, and if we delete the provisions which the Democrats oppose, this bill will create an unfair dismissal jurisdiction better and fairer for employees than the one that currently applies in Queensland. It will also be better than the one that currently applies for employees in Victoria. It will be largely the same for employees in New South Wales, marginally better for employees in South Australia and, arguably, about the same for employees in WA and Tasmania. When you are talking about a system which is going to be better for the states of Queensland and Victoria—about half the population of Australia—and the same, broadly speaking, for employees in two other states, you are really talking about a significant advance. In addition to that, you have the economic efficiency arguments which come into play because of the fact that we are moving to a single system.

I note that the definition we are moving, which arose from the research by Professor Stewart, has been picked up by the independent Review of the South Australian Industrial Relations System. This review, conducted by former Deputy President of the Industrial Relations Commission of South Australia Greg Stevens, reported to the South Australian government in October last year. In that report, former Deputy President Stevens quoted from one of the submissions to the review:

The fact is that any competent lawyer can take almost any form of employment relationship and reconstruct it as something that the common law would treat as a relationship between principal and contractor (or contractor and sub-contractor), thereby avoiding the effect of legislation ...

The review looked at Professor Stewart's recommendation and reported:

The Review considers that the proposition raised in this submission provides a positive way of dealing with this issue and provides the capacity to modernise the definition of employment, which has failed to keep pace with contemporary industrial and employment practice. This approach should also allow the distinction between an employee and a true contractor to be more clearly made. If approved by the South Australian Government—

and I am pleased Senator Buckland is here to hear this—

this, or a similar, definition should remove the need for expanded deeming arrangements under the ... Act and those amendments to the definition of industrial matter, contract of employment, employee and employer ... which are tied to the presence of an employment relationship at common law.

I would also note that the second part of this amendment picks up provisions under the Queensland act which allows the full bench of the commission, at the application of a union, to make general rulings about who is in and who is out. This will allow the creation of some considerable certainty in this area of law.

So we end up with a broader jurisdiction than we have in the four biggest states in Australia, an up-to-date definition of `employee' and, in addition, comparing it with my state of Queensland, a higher salary cap and more compensation than is available under the Beattie government's industrial relations reforms. There are also the various other protections which exist in the federal act against abuse of process. So from my point of view, if we pass this amendment and the one that follows it and the deletions which are also in the Democrat amendments, we will end up with an unfair dismissal system which is the best in Australia in terms of covering the widest number of employees, balancing the rights of employees and employers, providing appropriate compensation and having the most up-to-date definitions.

It would be a tragedy if the Greens, the Independents and the Labor Party passed up this opportunity for substantial reform which delivers an up-to-date industrial relations act, leaves the workers in my state of Queensland better off, the workers in Senator Collins's state of Victoria better off, and the workers in Senator Buckland's state of South Australia better off. From that point of view, I commend this amendment, and the Democrat amendments that follow, to the chamber and I commend this particular reform to the chamber.

Question put:

That the amendment (Senator Murray's) be agreed to.