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Monday, 11 August 2003
Page: 13065

Senator MURRAY (8:58 PM) —We have reached the end of schedule 1, which is the area with the most important amendments, I thought, in respect of the intent of the bill. By now even I have a clear picture of where this is going. The Democrats oppose schedules 2 and 3 in the following terms:

(6) Schedule 2, item 1, page 12 (lines 6 to 13), to be opposed.

(7) Schedule 2, item 2, page 12 (lines 14 to 23), to be opposed.

(8) Schedule 2, item 3, page 12 (lines 24 to 29), to be opposed.

(14) Schedule 2, item 5, page 14 (lines 10 to 30), to be opposed.

(16) Schedule 2, items 6 and 7, page 14 (line 31) to page 15 (line 3), to be opposed.

(17) Schedule 2, items 8 to 13, page 15 (lines 4 to 23), to be opposed.

(20) Schedule 3, item 2, page 18 (lines 8 and 9), to be opposed.

(21) Schedule 3, item 4, page 18 (lines 14 to 16), to be opposed.

(22) Schedule 3, item 5, page 18 (lines 17 to 18), to be opposed.

(23) Schedule 3, item 6, page 18 (lines 19 to 22), to be opposed.

(24) Schedule 3, item 7, page 18 (lines 23 to 25), to be opposed.

I also seek leave to move amendments (9) to (13), (15), (18), (19) and (25) on sheet 2955 together.

Leave granted.

Senator MURRAY —I move:

(9) Schedule 2, item 4, page 13 (line 1), omit “small businesses”, substitute “frivolous or vexatious claims”.

(10) Schedule 2, item 4, page 13 (lines 7 and 8), omit paragraph 170CEC(1)(b).

(11) Schedule 2, item 4, page 13 (lines 32 to 35), omit “In deciding whether to hold a hearing, the Commission must take into account the cost that would be caused to the employer's business by requiring the employer to attend the hearing.”.

(12) Schedule 2, item 4, page 14 (line 7), at the end of paragraph 170CEC(5)(a), add “or may invite the employee, in the time specified in the notice, to be heard before the Registrar or Commissioner without the need for the employer to be present, so long as the employer has the right to provide any further information that is relevant to whether this section requires the order to be made”.

(13) Schedule 2, item 4, page 14 (after line 9), at the end of section 170CEC, add:

Note: An employer shall not be required to attend before the Commission merely because an election is made by an employee under this section.

(15) Schedule 2, page 14 (after line 30), after item 5, insert:

5A After subsection 170CG(3)


(3A) If the Commission is satisfied that the matters listed in paragraphs (3)(da) and (db) impacted on the procedures followed by the employer in effecting the termination then the termination is not harsh, unjust or unreasonable on the ground of mere procedural defect, if the termination was otherwise fair in substance.

(18) Schedule 2, item 15, page 16, (line 3) omit “(about dismissal of applications relating to small business)”.

(19) Schedule 2, item 16, page 16, (lines 7 and 8) omit “(about dismissal of applications relating to small businesses)”.

(25) Schedule 3, page 19 (after line 5), after item 8, insert:

8A At the end of section 170CG


(5) In determining whether circumstances are exceptional in accordance with subsection (4), the Commission must have regard to whether procedures followed by the employer were in accordance with an industrial agreement or any selection criteria agreed to with the employees and approved by the Commission prior to the terminations occurring.

When the minister was saying how uncooperative the Senate has been on IR matters since the 1996 act, I noted that—because I now have a new printed copy that came out in June—the act in the 1997 version was 555 pages long and it is now 830 pages long. If increasing the length represents progress, we have probably done exceptionally well by at least that measure.

Moving to schedule 2 and schedule 3, I have pretty well gutted schedule 2 because it is an attempt to revisit some of the areas which try to differentiate the rights of employees in small business from those in larger businesses. Of course, the Senate has accepted that in some circumstances you should do that. For instance, there are provisions where you take into account the size and sophistication of the business concerned, so it is not a hard and fast rule in every instance. But, even with those general remarks, it should be clear to the government that we are supporting further restrictions on vexatious and frivolous applications. Senator Collins can speak for her party but, as I understand the remarks of the previous shadow minister in the House, the Labor Party has sympathy for having some ability to dismiss applications on the papers. Not everything in that area has been knocked over by us.

We have moved an amendment that will give the employee a right to be heard by either the commissioner or registrar without the employer being present. With respect to schedule 2, I should also say to the minister that we have taken away the idea that only small business employees should be dealt with in a particular way and have suggested in amendments (18) and (19) that all businesses should be dealt with in that way—so in fact we have expanded your approach and your proposal. Many of the items we are opposing in schedule 3 relate to items in schedule 2, but we are supporting items relating to employees' conduct, impact on the health and safety of others, taking into account employees' conduct in determining compensation and taking into account income earned between termination and reinstatement. I should indicate for the record that the Democrats strongly support the provision in the bill which seeks to make reinstatement the primary remedy, and I suspect that is a view shared across the chamber.