The Guardian August 15, 2001


Terminator for crushing workers' rights

by Anna Pha

The Howard Government pushed amendments to the unfair dismissal provisions 
of the Workplace Relations Act through Parliament on August 8. The 
Termination Bill is aimed at making it easier for small businesses to fire 
staff at will without trade union "interference".

The Bill in its earlier forms had been knocked back by the Senate on 
several occasions but has now been passed with the help of the Australian 
Democrats. Under the legislation, all new employees covered by a federal 
award will have an initial three months qualifying period during which an 
unfair dismissal claim cannot be made if they are sacked.

The employer will be able to increase that three months period by "written 
agreement".

This means small businesses will be able to sack workers during the first 
three months or more of employment for any reason whatsoever: if the worker 
joins a trade union, refuses to sign an individual contract, or demands his 
or her rights under an award or enterprise agreement such as payment for 
overtime or the correct wages, that employee could be sacked.

An employee who rejects sexual advances or reports sexual harassment or 
unsafe work practices likewise could be sacked. No reasons need be given. 
An employee has no rights to seek re-instatement or compensation.

Even where a worker survives the qualifying period, it will now be far more 
difficult to gain any justice for being sacked.

The Australian Industrial Relations Commission (AIRC) has an obligation to 
"specifically consider the differing capacity of businesses of different 
sizes to comply with dismissal process and procedures  such as the 
absence of dedicated human resource specialist in small and medium 
business". How many small or even medium businesses have a dedicated human 
resource specialist? 

What this comes down to is that a worker's rights may be denied if the 
employer is not up to scratch with knowledge of his or her legal 
obligations so that ignorance of the law or lack of specialised staff 
becomes an excuse not to comply. 

The AIRC may award costs against the worker or the worker's trade union or 
legal and other advisors who "act unreasonably in pursuing, managing or 
defending claims".

Additional penalties may also be imposed on lawyers and trade unions who 
"encourage making or pursuing unfair dismissal applications where there is 
no reasonable prospect of success, or who encourage defence of applications 
where there is no reasonable prospect of a successful defence".

The penalties are up to $10,000 or $2,000 for an individual.

The AIRC will have greater powers to determine whether or not a case has a 
reasonable prospect of success before hearing the case and may dismiss the 
matter following initial conciliation. There are also a number of other 
rules that will make it far harder for a worker to mount a case 
successfully.

The Bill takes the Workplace Relations Act another step towards 
deregulation of the labour market and the workplace, removing many of the 
already limited rights of workers and trade unions to defend their 
interests. It leaves small businesses in a stronger position to exclude 
trade unions, to intimidate workers, to force them onto individual work 
contracts and to ignore their legal obligations. 

The Federal Government is urging state governments to make similar changes 
to their unfair dismissal laws so that they will apply to all workers, not 
just those under the federal award system.

The Bill is one of a number of measures the Government plans to implement 
to win back the support of small businesses after the GST debacle. 

The other measures include making it easier for small businesses to force 
individual work contracts on workers and watering down the almost non-
existent requirements for individual contracts to be made legal.

The Government also plans to give small businesses new powers to take legal 
action against trade unions and further restrict the "right of entry" of 
trade union officials to work places.

It plans to introduce a requirement that trade union officials must seek 
written approval from a union member employed in the business and give five 
working days notice, before entering the workplace.

This would leave a union member extremely vulnerable, and give an employer 
five days to coerce a retraction of the invitation from the worker under 
threat of the sack.

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