The federal secretary of the Australian Council of Trade Unions, Greg Combet, has warned the Labor Party to be careful about watering down its approach to unfair dismissal laws. But it is not only the Labor Party that should be careful about changes to the unfair dismissal laws. The Government needs to take care, too.
The Government has long had on its agenda a plan to make small business exempt from the unfair-dismissal laws. The plan has been opposed by Labor and the Democrats, who have blocked earlier proposals in the Senate. Labor and the Democrats still have the numbers in the Senate, so the fate of any proposals lie in their hands. Both the Labor Leader Simon Crean and the Opposition spokesman on workplace relations, Robert McClelland, have indicated that with the election of the Howard Government for a third term, it now has a greater mandate. Mr Crean has also made it plain that he would like to see a change in the relationship between the union movement and Labor, so that the union movement would have less influence. Maybe he sees his history as a former president of the ACTU as electoral baggage.
The Government might be tempted, therefore, to test Mr Crean’s new stand to the limit by re-submitting its proposal to exempt small business from the unfair dismissal laws. If so, it would be wrong in principle and would perhaps backfire.
The principle is important. The rights of employees should not differ according to whether they are employed by a small or large business. Why should an employee be treated differently just because his or her employer happens to employ 19 rather than 20 other employees or have a turnover of $1 million rather than $5 million?
Employees should be protected against unfair dismissal. They should be protected irrespective of the size of the employer or whether they belong to a union or not. The only issues should be to define the extent of the protection and to ensure that its administration is not too onerous. If there is a problem with unfair dismissal laws it must be in their operation rather than the fact they exist – unless Australia wants a return to Dickensian days of absolute power in the workplace.
There are some dangers for small business and the Government in granting an exemption from unfair dismissal laws. Employees will feel more insecure. If they cannot get recourse through courts and tribunals more of them may well feel that they should join a union to get security, and use the power of the union to get redress. This inevitably leads to an approach of “”you can’t touch me I’m part of the union” approach under which employees who should be dismissed also get “”protection” – but protection of the worst kind. By exempting small business, the Government might driver employees into the unions’ hands.
One of the reasons for past union strength was the failure (mainly for constitutional reasons at the time) of federal government to give some base protections to all employees irrespective of union membership. That led to far too much union power.
Further, the Government would have to define “”small business”. It might be in turnover or number of employees. Either way, it will erect a barrier against a small business expanding. Businesses, given an exemption, would be wary about expanding in a way that would remove the exemption.
The Government should work to a uniform unfair dismissal law that gives protection against arbitrary abuse of power by employers, but does not turn into a costly administrative-legal nightmare.