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| Introduction | |
| Opposition to and rejection of unfair dismissal bills | |
| Sources | |
| Table: WR Bills and Acts 38th—40th Parliaments | |
| Appendix 1 | |
| Appendix 2 | |
The Coalition Government’s newly elected majority in the Senate from 1 July 2005 will allow it to pass legislation previously blocked by the Senate. Although the Coalition Government held 35 seats in the Senate (of 76 seats) in the 40th Parliament, support from 4 senators: either from the ALP (28 seats), the Australian Democrats (7 seats), Greens (2 seats) or Independents (4 seats) was needed to pass legislation. The Coalition had not held a Senate majority since assuming government in 1996, but it’s successive majorities in the House of Representatives meant that no government workplace relations bill was ever rejected there; thus the focus of this brief is the Senate. The Prime Minister, the Hon John Howard reflected on the position that the Government now enjoys following the 2004 federal election resulting in the Coalition Government holding 39 Senate seats in its own right:
… with the favourable election outcome in the Senate, we are now in a position to drive the industrial relations reform process further in ways consistent with liberal philosophy. (1)
In response to the Government’s foreshadowed introduction of further workplace relations reforms leading employer groups proposed new federal labour law models to the Government from the latter part of 2004.(2) The Workplace Relations Minister, the Hon Kevin Andrews set out a new model for national labour law in an address to the Committee for Economic Development of Australia on 25 February 2005 which proposed to extend the scope of the federal jurisdiction over State labour laws. Specific detail on this model was provided by the Prime Minister, the Hon John Howard on 26 May 2005 following approval by Cabinet.(3)
This brief, however, cites all of the workplace relations bills and acts of the 38th to 40th Parliaments in order to ascertain which proposals were passed, rejected or lapsed. Part of the rationale for the forthcoming industrial law changes is that the Senate had previously ‘blocked’ these reforms, in particular, bills dealing with unfair dismissal, and it is useful to understand which measures were blocked, passed or lapsed (at the time a federal election was called in 1998, 2001 and 2004).
The Hon Tony Abbott as a former Minister for Employment and Workplace Relations commented on the ALP opposing reforms to unfair dismissal legislation, (these are bills aimed at amending the Workplace Relations Act’s termination of employment provisions (at Part V1A Division 3). He cited 21 occasions where the Opposition opposed reform to the dismissal provisions on 22 October 2002 in the statement (re: the small business exemption bill – the Workplace Relations Amendment (Fair Termination) Bill 2002 [No.2]):
This government has no intention of taking the unfair dismissal regime off larger businesses—although there are certainly some further improvements that we would like to make to the way unfair dismissal works generally—but we do believe that small business is different. Small business is more like a family than an institution. Small businesses, generally speaking, do not have the complex structures in place to carry out the kinds of formal requirements that the unfair dismissal regime has generally imposed upon them. That is why small business deserves an exemption … This (the small business dismissal exemption bill) has become one of those bits of watershed legislation. It has become something of a political icon. This government has now proposed, in one or other house of this Parliament, to improve the unfair dismissal laws 21 times, and we have been opposed by the ALP 21 times.(4)
The small dismissal exemption refers to a dismissed employee (eg dismissed for lateness) making an application for an initial conciliation hearing with an industrial tribunal for reinstatement, or for compensation in lieu of reinstatement to the former position or similar settlement. The small business ‘exemption’ of the bill under discussion by Mr Abbott would have meant that a federal award employee would need to have worked in an (incorporated or constitutionally connected) business with 20 employees or more, otherwise the employee would not have the legal standing to make such an application, in this case, before the Australian Industrial Relations Commission (the Commission). Put another way, the small business employer would be, as existing staff departed and new staff replaced them, ‘exempted’ from unfair dismissal claims of employees.
The count of the occasions where the Opposition opposed dismissal reform begs the question: which particular measures were opposed and which were rejected by the Senate? It is assumed that Mr Abbott’s counts of opposition include two attempts to pass the small business exemption measure by regulation (in 1997 and 1998, both disallowed by the Senate(5)). The following unfair dismissal bills would have to be included in Mr Abbott’s tally and it is important to note that his comments appear to encapsulate ALP opposition to dismissal law amendments generally and the small business exemption measures specifically. (Hereon a rejection by the Senate can also mean effectively rejected: where the House of Representatives disagrees with Senate amendments to the Bill in question; refer to section 57 of the Australian Constitution):
Workplace Relations Amendment Bill 1997 (rejected by Senate)
Workplace Relations Amendment Bill 1997 [No.2] (rejected by Senate)
Workplace Relations Amendment (Unfair Dismissals) Bill 1998 (rejected by Senate)
Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No.2] (rejected by Senate)
Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 (lapsed)
Workplace
Relations and Other Legislation Amendment (Small Business and
Other Measures)
Bill 2001 (lapsed)
Workplace Relations Amendment (Termination of Employment) Bill 2000 (passed by Senate)
Workplace Relations Amendment (Fair Dismissal) Bill 2002 (rejected by Senate)
Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2] (rejected by Senate)
It can be seen that there were 9 bills and 2 regulations amounting to 11 dismissal instruments which the ALP opposed which, going before both chambers, constituted ultimately 22 counts of opposition. This is because the Bill which Mr Abbott was discussing, the Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2] would be later rejected both by the ALP in the Senate and by the Senate, increasing 21 counts of ALP opposition to 22 counts of opposition.
However, from August 2004 the next occasion for debate on the (same) small business exemption in the Workplace Relations Amendment (Fair Dismissal) Bill 2004 (reintroduced to the 40th Parliament after the Workplace Relations Amendment (Fair Dismissal) Bill 2002 had been rejected twice), the occasions that the small business dismissal exemption bill had been before the Parliament and/or rejected by the Senate appeared to have grown from 21 times to 40 times or more, evident in the following observations:
This legislation (the small business exemption) has been to this House more than 40 times.(6)
And:
There is one piece that has been knocked back 44 times; we know that.(7)
Or, as reported in the media:
One piece of legislation, exempting small business from unfair dismissal laws, has been defeated in the Senate at least 40 times.(8)
Yet the tallies of 40 or more rejections or considerations, however worded, by either House, of the small business exemption appear to include other dismissal bills, that is, bills which were to amend the dismissal provisions more generally, including one bill which actually passed the Senate, as well as other workplace relations bills not dealing with dismissal.
For example, one dismissal measure was the workplace relations regulation preventing casual employees from accessing the WR Act’s dismissal provisions unless they had served periods of 12 months or more with the one employer. The exercise was initially a restoration of workplace relations regulations struck down by the Federal Court in 2001.(9) This proposal might be included as a dismissal measure opposed by the ALP, even though the regulation was subsequently allowed by the Senate (and the House of Representatives) and redrafted as a bill in 2002 and passed with the support of the Australian Democrats in the following year, with some additional provisions: Workplace Relations Amendment (Fair Termination) Act 2003.
Another dismissal measure was the proposal to extend the jurisdiction
of the Commonwealth over the States in respect of corporations and dismissal
law (introduced after the small dismissal exemption was rejected twice
in the 40th Parliament), with this measure also to be rejected
twice over 2003-04: Workplace
Relations Amendment (Termination of Employment) Bill 2002 and Workplace
Relations Amendment
(Termination of Employment) Bill 2002 [No 2].
However, none of this legislation: Workplace
Relations Amendment (Fair Termination) Act 2003, Workplace
Relations Amendment (Termination of Employment) Bill 2002 nor Workplace
Relations Amendment (Termination of Employment) Bill 2002 [No 2] sought
to exempt small business from the dismissal law. There were also other
workplace relations bills introduced to the Parliament over this period
but they did not deal with the small business exemption or unfair dismissals
either: Workplace
Relations Amendment
(Prohibition of Compulsory Union Fees) Bill 2002,
Workplace
Relations Amendment
(Secret Ballots for Protected Action) Bill 2002,
Workplace
Relations Amendment
(Choice in Award Coverage) Bill 2002 as well as
a number of other bills none of which addressed dismissal, much less the
small business exemption.
The Workplace Relations Amendment (Fair Dismissal) Bill 2004 which was, as noted, the next bill to seek a small business exemption, lapsed at the end of the 40th Parliament in 2004. It was re-introduced after the 2004 federal election to the 41st Parliament in December 2004 with the same title: Workplace Relations Amendment (Fair Dismissal) Bill 2004. It is likely to be amended by the Government following the Prime Minister’s statement on industrial relations(10) which confirmed that the federal unfair dismissal law would in future exclude businesses employing less than 100 employees and displace large parts of the State dismissal jurisdiction. This Bill in its current form may even be set aside and be replaced.
In summary, the allegation that the Senate has rejected the Government’s small business exemption proposal 40 times is a fiction. The government measures which have sought a small business exemption and were rejected by the Senate over the 38th to 40th Parliaments amount to 8 rejections by the Senate and are:
Two attempts via regulations disallowed(11) although the first of these merely imposed a 12 month qualifying period on new starters in federally covered small businesses at which time their dismissal rights would resume. Other small business exemption rejections include:
Workplace Relations Amendment Bill 1997
Workplace Relations Amendment Bill 1997 [No.2]
Workplace Relations Amendment (Unfair Dismissals) Bill 1998
Workplace Relations Amendment (Unfair Dismissals) Bill 1998 [No.2]
Workplace Relations Amendment (Fair Dismissal) Bill 2002
Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No 2]
It is also useful to note that Senator Murray (Australian Democrats workplace relations spokesperson) takes a different view to the Government on workplace relations bills passed by the Senate and, particularly, of the bills rejected over the terms of the Coalition Government:
18 IR bills have passed the Senate during the eight plus years of the Howard Government; one a Coalition/Labor bill, six passed by the Coalition/Labor/Democrats; and, 11 negotiated and amended by the Democrats and opposed by Labor. The Democrats have often moved substantial amendments protecting the rights of workers. 13 bills have not passed, but because they repeat previous bills, those 13 in fact reflect just 4 proposals.
The most significant bill passed became the Workplace Relations Act 1996. That bill proposed a further radical overhaul of IR, building on the ‘first wave’ reforms of the Labor Government in 1993. The Democrats negotiated 176 amendments to restore a much fairer balance between the rights of employers, employees and unions.(12)
A table attached to Senator Murray’s statement indicates whether bills passed with Democrat support or, less frequently, with ALP support to become acts. Note that the tally of bills and acts in this Brief differs slightly with those above. It might be also useful to note that the Australian Industry Group has presented its view on wr acts which passed with or without their ‘original reform objectives’ (see Appendix 1). A number of bills amended the WR Act in a consequential way, for example following new public service legislation in 1999 – such amendments are not included in this Brief.
This Brief collates, in table form, government workplace legislation
which aimed to amend the principal federal legislative instrument, the
Workplace Relations Act 1996, – a labyrinthine exercise. The
table correlates bills in broad chronological order but where appropriate,
groups ‘separate’ bills where these have a similar purpose/title. For
example, the table groups the same or similar bill where this has been
rejected (or lapsed) in one Parliament but was reintroduced and passed
in a later Parliament. Three bills and one act all under the generic title
of Workplace Relations Amendment (Prohibition of Compulsory Union Fees)
over 2001 to 2004 illustrate the scheme of the table. The table shows
that a bill under this title lapsed in 2001, was rejected by the
Senate in 2002, was passed as an act in 2003. The Bill passed the Senate
after having been reintroduced later in 2002 with debate later influenced
by a decision of the Commission in early 2003 confirming that union bargaining
fees could not be included in federal certified agreements. The Democrats
decided to support the Bill which banned such fees: (Workplace
Relations Amendment
(Prohibition of Compulsory Union Fees) Act 2003).
A fourth bill with a similar title was reintroduced in 2004, as the Government sought to extend the 2003 Act’s provisions over the States. The 2004 bill lapsed when the 2004 federal election was called. This brief does not seek to explain the changes in political coalitions or change in views which may result in rejected bills being passed subsequently, although Senator Murray’s account and table is useful for this(13), as are second reading debates of each bill in the Senate.
The Parliament of Australia website (http://www.aph.gov.au/Bills) provides the stages of each Bill (current and old bills) moving through the Parliament including through reviews by Senate legislation committees, where relevant. The role of Senate committees and the Senate’s role in passing bills or rejecting them is also summarised in notes on the administration of the Senate, found on the parliamentary website.(14) Bills and acts below are linked to the Australian Workplace website (http://www.workplace.gov.au/) to provide an outline of the Bill or Act, its text, explanatory memorandum and the bill’s second reading.(15)
Between the 38th and 40th parliaments, seventeen government workplace relations bills were passed as acts including three bills which were rejected a first time but passed in the form of the second or ‘re-committed’ bill, five bills were rejected twice and became double dissolution triggers; one Bill was negatived once but not for a second time (meaning that fourteen bills were negatived or effectively negatived where the House disagreed with Senate amendments), while the majority, 22 workplace relations bills were not rejected by the Senate but lapsed at the time a subsequent federal election was called.
Bills rejected initially, but passed subsequently included bills dealing with: junior pay rates, union bargaining fees, transmission of business, registration of organisations, minimum entitlements for Victorian workers, contempt offences and ‘genuine’ bargaining/protected action. Of the five bills (effectively) rejected twice by the Senate, three were small business exemption from dismissal bills (1997, 1998 and 2002), one was a small business dismissal retention and extension bill and one related to secret ballots before industrial action. (See Appendix 2 for all acts, rejections and lapses and a brief text of the bill from the Parliamentary website: Old Bills).
The passage of workplace relations bills and acts over the 38th, 39th and 40th parliaments indicates:
• Three bills were passed as acts; one bill was rejected by the Senate twice; one bill lapsed.
• Three bills were passed as acts including one Bill rejected by the Senate, reintroduced and passed by the Senate and one bill was rejected by the Senate twice; eleven bills lapsed.
• Eleven bills were passed as acts including one bill which was first rejected by the Senate then ‘recommitted’ and passed while another bill was reintroduced after having been first rejected by the Senate, and subsequently passed; three bills were rejected twice by the Senate, one bill was rejected once; ten bills lapsed.
In respect of the workplace relations bills that were passed by the Senate, the Australian Industry Group has categorised these acts into two groups: bills that achieved the reform objectives of the legislation and bills that did not achieve the reform objectives in the original version of the legislation:
Various workplace relations reform bills were enacted during the last term, or this term, of Government, all of which were amended as a result of negotiations between the Government and Opposition parties. These Acts can be placed into two categories:
Those where the reform objectives of the original version of the bill were achieved; and
Those where the reform objectives of the original version of the bill were not achieved.
There is plenty of scope for debate about which category each of the Acts should be placed in. An assessment by Ai Group places the Acts in the following categories:
Those where the reform objectives of the original version of the bill were achieved:
Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003;
Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002;
Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003;
Workplace Relations Amendment (Fair Termination) Act 2003;
Workplace Relations Amendment (Protection for Emergency Management Volunteers) Act 2003;
Workplace Relations Amendment (Agreement Validation) Act 2004.
Those where the reform objectives of the original version of the bill were not achieved:
Workplace Relations Amendment (Genuine Bargaining) Act 2002;
Workplace Relations Amendment (Transmission of Business) Act 2004;
Workplace Relations Amendment (Improved Remedies for Unprotected Action) Act 2004;
Workplace Relations Amendment (Codification of Contempt Offences) Act 2004.(16)
For copyright reasons some linked items are only available to Members of Parliament.
