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Legislative Assembly for the ACT: 1997 Week 9 Hansard (4 September) . . Page.. 2880 ..

MR KAINE (continuing):

Based on data collected from a comprehensive survey conducted each May and November, my department is responding annually to approximately 1,100 private sector inquiries about long service leave and annual holiday entitlements. In addition, the department is following through each year approximately 20 to 30 grievances under the legislation, of which about two each year are not resolved through conciliation and are referred to the Director of Public Prosecutions for prosecution action. These figures do not include the many individuals who take their disputes directly to the Small Claims Court or the Magistrates Court.

I think the facts demonstrate that such legislation is important and has considerable relevance to many employees, as well as employers in the business community seeking certainty and a level playing field from which to base competitive advantage. It is important to understand that the Federal Workplace Relations Act, which provides for awards to contain minimum standards only and be pared back to 20 allowable matters, applies only to the award segment of the work force. Employees for whom there is no award in the ACT cannot, in the absence of negotiating an agreement, rely on the Federal jurisdiction for protection. The ACT legislation provides the safety net for them.

Mr Speaker, I have set the scene. I now turn to the Bills themselves. Firstly, I wish to address the Long Service Leave (Amendment) Bill 1997. The key changes to the Long Service Leave Act 1976 proposed by this Bill are as follows: It enhances the definition of "employee" by making specific reference to a "casual employee". The Long Service Leave Act 1976 is silent in relation to casual employees. However, this silence has not categorically excluded casual employees from the benefits conferred by the Act. Indeed, legal advice which has guided my department in interpreting the Act has indicated that the mere lack of reference to casual employees in the Act should not exclude casual employees from the benefits of the Act. Consequently, the department has always operated on the basis that casual employees have an entitlement.

The New South Wales Long Service Leave Act includes casual employees. In any case, the important indicator here is the historical practice. ACT employers have been willingly providing long service leave benefits to casual employees, despite the uncertainty of the legislation. Reasonable employers have long held the view that, if an employee engaged on a casual basis has given long and faithful service, then that employee is as deserving of a long service leave holiday as a full-time or part-time employee. What the Bill is doing, then, is codifying existing practice and overcoming ambiguity.

However, I recognise that in the current industrial relations environment, where the trend is towards more flexibility in the nature of employment, there has been an attempt to distinguish between irregular casual employment and regular and systematic casual employment. The Federal Workplace Relations Act 1996, in so far as it needed to identify which casual employees would be bound by the unfair dismissal provisions, included a definition of "casual employee" derived from the International Labour Organisation convention which gave rise to the current unfair dismissal regime now widely accepted in Australian industrial law. This Bill embodies that same definition.

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