WORKPLACE RELATIONS AMENDMENT (FAIR DISMISSAL) BILL 2

12th Aug 04

Mr ORGAN (Cunningham) (10.49 a.m.) — We have just heard the member for Indi talk about the unfair dismissal, small business bogy and about her 15 years working in her own family's small business. I would like to let the member for Indi know that, prior to coming to this place, I worked for some 30 years as an employee in factories, down coalmines, in the higher education sector and in small business as well, and I have seen the real need for this unfair dismissal legislation.

The purpose of the Workplace Relations Amendment (Fair Dismissal) Bill 2004 is to exempt those small businesses with fewer than 20 employees from the dismissal laws of the Workplace Relations Act 1996. The government is proposing that new employees dismissed from federally regulated small businesses be excluded from seeking an unfair dismissal remedy. This bill has been before the House a number of times, and each time it has been rejected by the Senate. The irrational drive to curtail union power has clearly been a major objective of this government since it came to power. What this government does not accept and does not understand is that when you attack unions you are attacking the workers of this country. When you attack unions you are attacking the ability of ordinary Australian workers to access appropriate wages and conditions so that they can put food on the table and a roof over their heads and enjoy an appropriate standard of living.

Just this morning it has been reported that, according to the Australian Council of Trade Unions, the number of low-paid jobs has surged under the Howard government. Almost two out of every three new jobs created in the past three years pay less than $600 a week, according to the ACTU's research. ACTU President Sharan Burrow points out that low-paid and casual work is booming under this government, while permanent full-time work with decent pay and conditions is shrinking. The ACTU's research has found that Australia's job market is splitting in two and that our work force is rapidly changing.

From 2000 to 2003 the Australian work force grew by just over 400,000 new jobs, but nearly two-thirds of those jobs paid less than $600 a week, or less than $31,200 a year. Almost one million Australians were working overtime but were not being paid for it, according to this new research. And there were now more than 2.2 million casual workers in Australian—a 22 per cent increase since 1996. The data shows that part-time jobs have grown by almost a third in the last eight years, outstripping full-time jobs growth by more than three to one. The ACTU's research shows that low-paid, less secure jobs are the major trend of the Australian job market. Ms Burrow said this morning:

In the context of the current debate around industrial relations, people's lives are actually not being focused on. The Howard government's legacy is low-paid, insecure, casual work with increasing hours often unpaid for full time workers.

This bill reflects the government's approach to low-paid and vulnerable workers, and the Australian Greens are firmly opposed to it. Thankfully, a strong Senate has prevented the Howard government from implementing the more extreme end of its ideological agenda. The unfortunately named `fair dismissal' bill before us would be laughable were this government's agenda a little less frightening. As was reported in the Canberra Times midway through last year:

The Howard government certainly couldn't be accused of giving up on pursuing legislative change in the industrial-relations field.

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Notions of “fairness” and “protection for employees feature prominently in the colourful and imaginative titles of several current Bills. However, it is necessary to peel back these labels to discover the Government's real intent. The Fair Dismissal Bill is a good example. It seeks to exempt businesses with fewer than 20 employees from federal unfair dismissal laws—a proposition that was recently rejected by the Senate for the seventh time. It is not exactly clear what concept of “fair dismissal” would apply to employees in these small business workplaces if the Bill became law.

As others have mentioned, it should not surprise us then that a bill which targets vulnerable small business workers is named the `fair dismissal' bill. This bill is anything but fair. It tries to create a two-tiered system of employment rights and, in doing so, offends the fundamental legal principle that all people have the right to equal treatment before the law. The government's use of names like this only makes their agenda look more insidious. What can they possibly aim to achieve with names for bills which obviously attempt to make the agenda look less insidious than it actually is?

As my colleague in the other place Senator Kerry Nettle pointed out, the last time this bill went before the Senate it was noted that it was in fact the 21st attempt by the coalition to strip small business employees of the right to seek reinstatement or compensation in the Australian Industrial Relations Commission for being unfairly sacked from their jobs. That is right—21 times. This is the same government that promised that no worker would be worse off under the coalition's industrial relations policies. Arguing in support of its earlier attempts to make this change, the government claimed that the current entitlement to seek reinstatement or compensation was costing jobs, and we heard that from the previous speaker.

The government told us that as many as 50,000 jobs would be created if only employers had more freedom to sack people. The government provided no evidence to support this claim, and departmental officials could offer no evidence to support it when making a submission to the Senate inquiry into the bill last year. The government's own expert witness in a Federal Court case dealing with an unfair dismissal case in late 2001 revealed that the claim was baseless; yet the government still persists in making the argument. For example, when the bill was rejected by the Senate back in March the then Minister for Employment and Workplace Relations, Tony Abbott, said that the move would deny thousands of people a job. Wrong. Employment growth in the nineties was strongest when unfair dismissal laws were at their strongest. We know that the state of the economy and business confidence are major factors that drive employment growth. The consequence of this bill becoming law would be that employees of small businesses would have no protection from arbitrary sacking. This would further erode the relatively low level of worker protection in Australia. That is what we have to remember here. What the government does not really think about is workers' rights, workers' protection—protection of ordinary Australians.

Mr Randall —How about employers?

Mr ORGAN —`How about employees?' the member interjects.

Mr Randall —Employers.

Mr ORGAN —We need to protect employers and employees. There is no doubt about that. That is the role of this government—to be even-handed and to be fair, not to be biased in one direction.

An OECD report entitled Innovations in labour market policies: the Australian way, published in 2001, found that Australia scored at the low end of the scale on dismissal procedures in particular, as well as on severance pay, notice requirements and remedies for unfair dismissal. Exempting small business from unfair dismissal laws would encourage unscrupulous employers—and they do exist—to restructure and rearrange their operations to slip below the 20-employee level.

I note that an Australian Financial Review article on 18 March by Kayoko Tsumori entitled `Dismissal law benefits the long-term unemployed' rather well puts and is obviously very much in support of the government's case. But that reporter notes:

There appears to be a fear that the small business exemption will result in mass arbitrary dismissals. This is unlikely.

That is not good enough. We do not want `mass arbitrary dismissals' taking place as a result of this legislation, if it should happen to pass. It is just not good enough for the workers of Australia to be faced with `mass arbitrary dismissals'. Exempting small business from unfair dismissal laws would encourage, as I said, unscrupulous employers to restructure and rearrange their operations to slip below the 20-employee threshold. We have heard the member for Throsby in this debate talk about some of those possibilities.

Just as large employers with unionised work forces exploited measures that this government introduced purportedly for non-unionised work forces to drive unions out of their workplace, big businesses could contract out work to small employers or break up their businesses into smaller units to get around unfair dismissal laws if this exemption were to take effect. Far from fostering an environment in which employers would be more likely to hire workers, as the government claims is its intention, this legislation would cause friction and instability, and that is not something we want.

Australians innately understand the idea of giving everyone a fair go, and not just those people who are lucky enough to work for a company employing more than 20 workers. This government clearly does not believe in giving all workers a fair go. This legislation is evidence of that. The government cannot be serious when it argues that making it easier to sack people will help create more jobs. Making it easier to sack people will only exacerbate the job insecurity that millions of Australian now work under, and they should not have to work under such a regime. This is not a serious job-generating measure, and the government has fooled no-one into believing otherwise. It is nothing more than the latest attempt to shift the balance of power towards the powerful—the bosses—and away from the vulnerable—the workers, the very people whom the unfair dismissal laws are designed to protect.

Mr Randall interjecting—

Mr ORGAN —This is not about class warfare, as the member for Canning is interjecting. It is about taking care of ordinary Australians, whether they be small business owners or workers, employers or employees. This is not about class; this is about taking care of ordinary Australians. This government has not taken the issue of stubbornly high unemployment seriously for the entire time it has been in office. Official unemployment remains stuck at around six per cent, but this figure masks the true extent of joblessness. Many people who have part-time work want more hours, and almost one million more people are discouraged job seekers. The real unemployment rate—the rate of those people who want work, are able to work and need extra work to bring their pay up to a living-wage level—is around the 12 to 13 per cent mark, according to some analysts.

The government's response to this serious problem, which causes great social dislocation and individual distress, is to further weaken the protective mechanisms that mediate the relations between employer and employee. The government describes this as deregulating the industrial relations system. The description belies the intention and the outcome, which is to give more power to the powerful at the expense of working people.

The Minister for Employment and Workplace Relations, in speaking to this bill when it was last before this place, said the government trusted that employers and employees could arrange their working relationship without the need for `excessive regulation'. I am sorry, but the minister is wrong. He fails to acknowledge that the relationship between workers and management and bosses is in most cases an unequal one. That is why unions exist—to protect workers. That is why the industrial relations system in this country has developed the way it has—to protect workers from the abuses of bosses and management, to allow workers to share in the profits of their work, to allow workers to go to work and return home safely, and to develop an egalitarian society where poverty and want is minimised and the prosperity of this nation is shared amongst its people.

The Australian Greens agree that most people will seek to work cooperatively to establish the best working arrangements for themselves. But laws such as unfair dismissal laws are not made for the majority of employers and employees. They are designed to protect the vulnerable—those with little or no bargaining power in the industrial relations arena. It is not enough, as the minister has argued, simply to have a job. Workers have the right to a safe workplace. They have the right to work with dignity and the right to fair pay and reasonable working conditions. And they have the right not to be sacked from their job without good cause and without the opportunity to discuss their work performance. That is what the present unfair dismissal laws do; they require discussion, negotiation and fairness. What could possibly be unreasonable about that?

The minister has failed to make a case to exempt small businesses. It is not the characteristic of an employer that matters in this circumstance. What matters is ensuring that all workers have the same level of protection. Just why the government has decided to reintroduce this legislation is unclear. It is obviously a double dissolution trigger, but, thankfully, it has no hope of securing Senate support.

The Australian Greens do not believe that this bill is justified or justifiable, and we certainly will not be pressured into supporting legislation that undermines the rights and the protection of working people. For the good of this country, the government must support both employers and employees, and not take sides as it does or as it is doing in this bill. The workers and employers in my electorate of Cunningham have been working together for a long time now—workers, unions, management, bosses, business groups such as the Illawarra Business Chamber and union organisations such as the South Coast Labour Council. The government needs to set in place a level playing field and protective measures for workers and employers. This bill threatens the process of equality and consensus and therefore should not be supported.