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Monday, 5 March 2001
Page: 24989


Mr McCLELLAND (9:28 PM) —The previous speaker on the Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No. 2] suggested I may not have as an extensive a knowledge of small business as he or someone opposite has. For some 15 years before entering this House, I was certainly a participant in a small business and in the last decade or so I was a small business proprietor in the sense that I was a partner in a legal firm. That is a point well worth making. Being partnerships—until recently they were unable to incorporate in New South Wales—legal firms were not obviously corporations and, not being corporations, they were not bound by the federal legislation, the Workplace Relations Act. Also, employees of legal firms—certainly in my experience in New South Wales—are not subject to a federal award; they are regulated by state awards. That is one example—partnerships.

There are many other examples, because I think something like 53 per cent of small businesses are not incorporated—that is, they are sole traders. They are on their own or they may, with another partner, employ some people or they may, as an individual, employ people. Some 53 per cent of small businesses are not incorporated; therefore, this legislation has nothing at all to do with them. This act does not apply to unincorporated businesses unless they are a respondent to a federal award. The government has no figures on that, but it is fair to say that whether or not it is a majority the government has not done the research and I do not have the resources to do the research. But the point is that this bill will have very little impact on the economy because it applies to so few employers. So let us get the facts right.

I should state for the record that, before coming into parliament, I was, for my sins, the staff partner responsible for employing staff in my legal firm. I have to acknowledge that, on a couple of occasions, the firm had, as a result of my decisions, unfair dismissal actions served upon it. No-one likes that. My nose was well and truly out of joint. The facts of the matter are that this legislation was intended to have, and in fact has had, a significant educative role. It has informed the business community what is a fair thing to do in these circumstances. I certainly learnt, after being the subject of allegations, that, yes, I could have sat down with someone and said, `Listen, we're not happy with how you're going; let's work out how we can lift your game.' In other words, I learnt to have the courage to sit the person down and put to them my concerns about how they were doing the job. The concept of a fair go all round is incorporated in the act already, and Labor supported that. Indeed, it comes from a famous case of Loty and Holloway—and I know Necia Holloway very well, because she worked for a famous old trade union official called Charlie Oliver, who was, for a long while, the State Secretary of the Australian Workers Union. Necia was quite a character.

The case that she was involved in—indeed as an applicant—determined that, in looking at whether an employee has been unfairly dismissed, you look at all the circumstances. You look at whether there was a fair go all round. There is nothing more Australian than that phrase—a fair go all round.

The government have clearly brought this legislation on because they have made such an atrocious mess of the business activity statement. They are desperately trying to win back the small business constituency. The first thing we ask is: how many small businesses are affected by the legislation? The answer to that seems to be by virtue of a reply to a question on notice when this legislation was floated, I think for the second time, on 15 July 1998. Mr Reith, the Minister for Workplace Relations and Small Business as he then was, said:

It is not possible to specify the number of small businesses which would directly benefit from the Government's proposed exemption from unfair dismissal laws for small businesses, as the operation of the provisions, according to the criteria outlined above—

and it went through the provisions of the act—

would depend on the details of the interrelationship between federal and State legislation, in each State, at the relevant time.

So the small business community are again being conned by this government. They are being conned because the legislation is going to apply to so few of them; firstly, because so many of them will not be employing under federal awards and, secondly, because so many of them are not incorporated. Following his response to my series of questions, I tried to tease out a further answer from Minister Reith, which I got on 12 August 1999. I asked:

What percentage of businesses employing 15 people or fewer are (a) constitutional corporations, (b) respondents to a federal industrial award ...

The minister replied:

(a) approximately 47% of businesses employing between 1 and 15 employees were incorporated.

That is, 53 per cent—the majority—are unincorporated and hence not covered by this act. That comes from that statement. In respect of part (b) of my question about how many of that 53 per cent were respondents to a federal award—and if they were, it would be conceded they would come under this federal legislation—the answer was:

(b) no relevant data is available.

So they are here at the dispatch box saying, `Well, look, small business, we know we've more than knocked you about. We've kicked the stuffing out of you with the business activity statement. We're making amends because we are exempting you from the unfair dismissal laws.' But they cannot say how many are going to be affected. They have not done their homework. In order to take away rights of ordinary Australians, surely you have to have a compelling argument. They do not even have the figures. They are once again conning small business.

Let us talk about those people whose rights are being taken away. On the basis of the Industrial Relations Court of Australia 1996-97 report, which contains the most recent figures that I have, approximately 50 per cent of applicants before the court were between the ages of 36 and 50. They are pretty vulnerable years. I am now 43 years of age, and if I am not elected the next time around I suppose I could go back to the law and not have to worry about moving boxes in a warehouse or carting bricks. But if I had to go back to a manual job, at 43 I would be in trouble.

I have a little more experience than the young guns coming out of university but, traditionally, if you are over 40 you are pushing it to get a job. Fifty per cent of unfair dismissals claims are by people over 36 years of age and a fair proportion of those are over the age of 40. This is the time when you have kids at school, health bills, kids' dental braces and, of course, mortgage payments. This is the time when not only your security but the security of your family is directly related to your employment. To say, `We don't care; you are not entitled to a fair go all round—up yours. You have invested the last 20 years of your life with our company but we're not concerned about that— out the door. We are a company of fewer than 15 employees and we don't have to give you reasons; we don't have to give you an opportunity to correct what we are unhappy about—off you go' is an outrageous situation in the year 2001. That is just unspeakably outrageous.

This is in a context where the greatest source of insecurity for workers these days is the dramatic and exponentially increasing trend towards the casualisation and part timing, if you like, of the work force. That is a source of real insecurity. What remedies does an employee have if the boss comes in one morning and says, `I have been advised by my accountant that I can save a quid if I turn you all into casuals,' or, indeed, `I don't want all of you; I'm just going to employ some people for casuals. I think I can get younger workers to do the work so I'm going to get some casual younger employees—off you go.' What rights do you have? You have none if this bill goes through. A worker has no rights at all because there is no right of unfair dismissal in circumstances where the dismissal is due to a structural change in the work force. The employer has no obligation to consult with the workers concerned and, under this government, no obligation to consult with their trade union. Indeed, under the provisions of section 89A of the act, there can no longer be contained in an industrial award a provision requiring the employer to consult prior to introducing structural change. The greatest cause of insecurity in the work force—casualisation and being turned into part timers—is without remedy if this bill goes through.

What effect is this going to have in the context of a slowing economy? What effect is it going to have on people who are in a job but who are a not going to know whether, in six months time, three months time or indeed two weeks time, they are still going to be in employment? They will not spend. If this bill goes through, it is going to have a dramatic effect on insecurity in the work force and, I surmise, it will have knock-on consequences for consumer confidence. Again, this is in the context where we have no data at all. Again, what are we talking about? Who are we talking about? Who are these people who deserve to have their rights taken away from them because the government is trying to win back small businesses from the hiding they gave them with the business activity statement? Again, on the figures of the Industrial Relations Court for the last year that it operated prior to its effective abolition, a total of 48 per cent of applicants had incomes below $25,000 per year and 63 per cent had incomes below $30,000 a year. These are people who, on those levels of income, are trying to bring up families. They are the ones being victimised by this government which is trying to win back small business. It is the ultimate in hypocrisy, the ultimate in politicking.

They are putting this bill forward as a double dissolution trigger. In respect of that we say, bring on your double dissolution because we will point out to small businesses how very few of them would be affected and that the only concept that really is involved here is whether ordinary Australians on the sort of income I am talking about—below $30,000—are entitled to a fair go all round. While small business owners are small business owners, they are also parents and grandparents, and they do not want their kids going out into the work force where they can be dismissed arbitrarily and capriciously without being given a fair go. It can have a devastating effect on a young person, to be dismissed in those circumstances. It can affect their confidence dramatically. Indeed, as I have indicated, if more senior Australians—and I put myself in that category—lose their jobs, it can have a dramatic effect on their entire lifestyle and, it is fair to say, the economic pressure of unemployment has one of the greatest impacts on marital survival. This government will throw in things like they did in question time today and repeat phrases like `family values'. Family values—my goodness me! If workers—parents, fathers and mothers—can be sacked without a fair go, how can they say they are concerned about family values? It is a complete travesty.

On the previous occasions that this bill has been before the House I have gone through its provisions in quite some detail. I will not specifically go through them other than to mention a few provisions which are really going to be to the disadvantage of workers living in rural and regional areas or indeed in cities when they are located away from a source of legal advice. For instance, the test as to whether they can get an extension of time for filing their application is much more severe now—they will effectively bear the onus. So someone, paradoxically, who is not a member of a trade union and cannot get access to advice is going to be at a disadvantage.

There are very technical requirements requiring the Australian Industrial Relations Commission to bring on a mini trial, if you like, if there is a jurisdictional issue involved. There are all kinds of false logic involved in this act—for instance, the obligation on the conciliator from the Australian Industrial Relations Commission to provide a certificate which has to state, and I will quote from the act:

...on the balance of probabilities, the applicants' claim in respect of the ground...is likely to succeed.

Again, in terms of a conciliation process—a process designed to bring the parties together—the parties will be compelled to go into litigation mode because the whole aim of progressing the matter further will be to get one of these certificates. You would be crazy, if you were an employer, to be making an offer of settlement because it would, by your gesture, indicate to the conciliator that you believed there was some merit in the applicant's claim. There are all kinds of cases—Doyle and the Western Suburbs District Rugby League Football Club was a case that I was involved in where Justice Michael Moore in the Federal Court of Australia said that the whole purpose of conciliation is to try to bring parties together. The recourse and the outcome of a conciliation most certainly should not be disclosed in subsequent legal proceedings but this bill, if passed, will institutionalise that—against commonsense.

This conciliation certificate has vital importance because, if litigation continues beyond the conciliation stage, there are all kinds of cost penalties involved for the applicant and, indeed, there are all kinds of cost penalties involved for the lawyers if they continue an action after a conciliation stage, if the certificate is not in their favour, because they will effectively bear the onus of proving that they were justified in continuing the action. Now, that is contrary to all norms of representation in any other area. There are no other areas of commerce or contractual relationships where such draconian provisions are imposed on vulnerable people, at a most vulnerable time in their lives—when they are worried about putting food on the table—and having to think about representation and costs penalties. Of course it will scare people off and that is what the government wants to do. It wants to scare people away from pursuing their rights but the trouble is the people who will be scared away from pursuing their rights are our fellow Australians—they are mothers and fathers with kids. They will be fellow Australians who have lost their jobs in declining economic circumstances, in situations where not only their well-being is at risk but also the well-being of their family members and we are talking about imposing all of these draconian penalties in addition to, as I indicated at the outset, removing rights.

And all of this for why? The government cannot tell us because fundamentally they cannot tell us how many small businesses would be involved. On all of the logic, it would be very few in the overall context of the economy because so many small businesses are not corporations and do not employ their employees under federal awards. Again, the government is conning small business, but in the process of using scapegoats, as is their custom, who are the scapegoats? They are vulnerable, ordinary Australians whom, one would think, we have an obligation to protect. (Time expired)