Page 3445 - Week 11 - Wednesday, 21 September 2005
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Mr Gentleman’s motion makes reference to the changes to unfair dismissal laws. These proposals will exempt 95 per cent of the ACT private sector work force from unfair dismissal laws. That means 100,000 workers—juniors, casuals, apprentices, shift workers and permanent workers—will no longer have access to a low cost, independent remedy should they be dismissed unlawfully.
The Howard government has used clever semantics on this issue. They claim that after their reforms, unlawful dismissal claims will still be possible. But unlawful and unfair dismissal are not the same. Unfair dismissal aims to achieve equality in the workplace and prevents employees being sacked harshly, unjustly or unreasonably. A successful unlawful dismissal claim, on the other hand, is possible only where there is a breach of a specific category prescribed in the act, and this is generally a termination of an employee based on discriminatory grounds or where an employer does not provide the relevant minimum period of notice of termination to an employee.
Further, unfair dismissal claims are generally heard in the affordable industrial relations commission. In comparison, unlawful dismissal claims are generally heard in the far more expensive Federal Court, in which an employee must hire a lawyer to have any chance of success. The cost-prohibitive nature of unlawful claims compared to unfair claims is demonstrated by the number of claims actually heard. Only 147 unlawful termination claims have been referred to the Federal Court since 1996—nationally less than 25 cases a year. Yet, over the same period the industrial relations commission has processed more than 50,000 unfair dismissal applications. Perhaps that is the real reason why the federal government wants to get rid of this option.
As the Senate inquiry into unfair dismissal and small business employment put it:
… removing access to unfair dismissal will inevitably result in an increase in the number of applications before the Federal Court and other common law courts by aggrieved employees seeking remedy for unlawful dismissal. There is no doubt that both federal and common law courts are significantly more time consuming and costly than other jurisdictions in which applications for unfair dismissal are currently being fought out. This is likely to have adverse consequences for both employers and employees.
Mr Gentleman’s motion also makes reference to the negative impact on families that these changes will have. Mr Howard, as Prime Minister, suggests we are about to embark on a golden age, where flexible employers will grant enterprise workers their every wish under gold-laced AWAs. It is clearly his wish that these “secret contracts” replace enterprise agreements and awards as the norm in Australian workplaces.
But let us have a look at some of the research, some of the facts. Research already demonstrates that these agreements are anything but family friendly. Figures from the Australian Bureau of Statistics show that only some seven per cent of AWAs registered to date have provision for maternity leave. Further, woman on AWAs earn on average $5.10 an hour less than men. Research also suggests that “secret contracts” offer less flexibility for work/family balance and provide less job satisfaction.
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