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(Cairns... Far North Queensland)


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Selwyn Johnston



One person, with the support of the community, can make a difference





For some time now, Industrial Relations Law Reform has been the rallying point for small business in Australia… and rightly so. 

Over the last fifteen years we have seen an industrial relations system that had worked reasonably well modified, not only in scope but also in attitude. We had Industrial Commissions whose “orders” were ignored with impunity but by and large the results of these Commissions were not too bad. Outcomes that left the parties with dignity and some real sense of achievement were positive outcomes. For the most part, these results were achieved through talking and negotiating rather than slugging it out economically. 

Over time attitudinal changes crept in, certainly encouraged by “political correctness”. One particular area involved was that relating to employee dismissal. Whereas previously employee dismissal was pretty much based on the “fair go” approach all that was to change with the new and “enlightened” attitude. Essentially the new approach ran from the proposition that the employee had an inalienable right to employment and consequently could do no wrong. So far was this attitude taken that what could amount to an indictable offence at law on the part of an employee, did not necessarily exclude what became an “unfair dismissal” action. 

Unfair dismissal thus became a compensation matter by way of what amounted to “ex-gratia” termination payments. Employers found themselves in the position of being practicably unable to sack staff because of the hassle and the cost. They had Buckley’s chance of winning a challenge, as the wisdom of previous administrations was gradually lost. Employers could either settle an “unjust” claim or go to legal costs that would quite probably exceed the proposed claim settlement figure. 

Now lets not get this wrong. Not all the fault on all occasions fell with the employee as there were some pretty rough stunts pulled on employees by employers. That is simply undeniable. In the majority of dismissal cases however the old moral based system applied.  But by and large the popular belief grew up in the community that small employers should be relieved of the encumbrance of “unfair dismissal” laws and be able to terminate an employee with reasonable notice on reasonable grounds without defining a single or driving cause. 

As many small businesses develop from family enterprises, they were not overly skilled in the matter of industrial relations law, at least by comparison with the Trade Unions who had made a profession of industrial relations for more than a century. Consequently some leeway to the employer was deemed to be reasonable for these small business operators. But by this time small business had started to develop its own defences. We got to the stage where most employment was “casual” or for a fixed period of time, the so-called contract system of employment. 

When Prime Minister John Howard stated pre-election that these inequities should be corrected not many people disagreed with him. The general consensus of what a small business was, in the minds of a great number of people, was a business of say up to 20 employees. These, it was believed, should be eligible for relief. This was considered about the level at which a business required the full time employment of a dedicated “employment officer” or as probably would be styled today a “human resource officer”. 

On that basis everyone was pretty laid back about the proposed Howard Industrial Relations Law changes and so without question it became a positive for the Prime Minister at the election. At that time Labor was struggling and scoring points off them was not all that difficult. It was a dream run for Howard who otherwise was not short of skeletons in the closet himself. The crowning glory for Prime Minister Howard was when Mark Latham made a wrong turn in Tasmania and timber workers there strongly supported Howard, a fatal blow to Latham. The Howard team, as is now history, were returned to Government under improved circumstances and everyone waited for the promised relief to small business. 

Now everyone in business knows that small business [the single operator tradesman is now referred to as “micro business”] has different interests and needs to medium sized business and big business. Big and medium sized businesses with their established and often outsourced Human Resources Sections were competent to handle the previously existing law and possibly even to overcome its inherent difficulties. Their skills equalled those of the Unions and Governments. 

However, what was to come out of the Government Industrial Relations Laws when finally introduced was something completely different. Instead of setting the size of the organisations that could benefit from the legislation [i.e. about 20 employees] it came out as 100 employees. Furthermore, by a bit of skilful business management practice an organisation that clearly had over the 100 employees could, one way or another, engineer its restructuring to ensure that it consisted of a number of entities all of which would employ below the threshold set in the new legislation. 

There is little doubt that the top end of town initiated this enhanced upper limit and the Government was only too happy to accede. For all we know it could have been part of the original plan. Maybe it was considered unwise to confide in the public. Whether that is a correct assessment or not is unclear but John Howard is going to have to live with it right through to and during the next election. No doubt he will be relying again on his quite reasonably correct assertion that the attention span of the electorate is about 14 days and by that time we will have forgotten all about it. Perhaps that is his hope again. 

But clearly the cat was let out of the bag when Senator Nick Minchin [Lib S.A.], speaking to the H R Nichols Society said that the Industrial Relations job was far from done and that there were future plans to further erode the Industrial Relations balance within this country. The details of that meeting have been well publicised in the media. Since the meeting was taped, a record of the proceedings is now publicly available, at least in part. What was also recorded was the statement by the Senator that the Industrial Relations laws, even as they stood, were very unpopular with the public. 

Admittedly the Prime Minister has rebuked Nick Minchin, but whether or not we like it we are all now on notice that further and more draconian changes are planned and if you listen to the Prime Minister’s comments they refer mainly to the period up to the next election. Not beyond it as Nick Minchin was stating. A difference that needs clarification. 

Perhaps we could accept all the assurances being given but so far during the Howard administration years we have had a string of concerning events in which the truth was an elusive concept. Even more concerning were the official explanations that came with them. 

To mention a few there was the matter of the waterfront dispute, which had to be resolved, but who played what part and when was always shrouded in constructed obscurity. Then there was the “Children Overboard Affair” which by any standards, except perhaps those set by George Bush, was simply an embarrassment to both the Government and the Country. 

Without trying to go through the whole litany of similar incidents, such as intelligence issues, we can come right up to the presently running fiasco the “Wheat for Guns” deals as it has been so uncharitably described by the Shadow Minister for Foreign Affairs. The real truth of these dealings is only now beginning to emerge and politicians share dealings in AWB Limited are doing nothing to inspire public confidence.  The public perception here is irrespective of the outcome of the Cole Inquiry. It goes to the level of public confidence in the integrity, honesty and reliability of our Government. 

Getting back to the matter in hand and the Industrial Relations Laws future changes as spelt out by Senator Nick Minchin and the rebuttal given by the Prime Minister just what level of confidence can we have in the statements of the Government. 

Very little it seems. 

A Freedom of Information Application was recently made on a Federal Government Department regarding the Industrial Relations proposals, seeking the full story regarding its development and implementation. It would seem from the documentation that was released to the applicant that all that has happened so far was planned well in advance. 

But the interesting thing was that the final section of the critical document was dealing with, for the want of a more accurate description, “Future Proposals and Actions”. This section was completely blacked out and while it is reasonable for the Government not to disclose its hand too early, it is not unreasonable to presume that the “future” material that was blacked out was exactly what Senator Nick Minchin was talking about to the H R Nichols Society. 

Clearly now that the cat is out of the bag it is a reasonable expectation that the Government will fess-up and come clean with the details on future Industrial Relations proposals and so avoid the embarrassment suffered with the Iraq wheat deals, the Iraq intelligence (WMD’s), the children overboard and all the rest. 

To date this has not been done and realists will say that it is unlikely to happen. 

So from this we can be reasonably confident that despite what the Prime Minister has had to say on the matter since coming back from India, what Senator Minchin was saying was the truth and that is what will be the product of the next term of the Howard Government, assuming of course they are re-elected. 

So, from this point on we can hardly claim that we weren’t on notice of the Industrial relations changes as set out by Senator Minchin. 

I expect however the final decision is ours... and we will make that decision at the ballot box!





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Written and Authorised by Selwyn Johnston, Cairns FNQ 4870