The Federal government has launched yet another attempt to change the unfair dismissal laws. Once again it is going about it the wrong way. It wishes to exempt small businesses – those employing under 20 people — from the provisions. The change offends normal principles of equality before the law. Why should one employee get a different set of rights from another, just because their employer happens to employ a higher number of other employees? The principle should be that employees should be treated fairly, irrespective of the nature of their employer.
The Government has called its latest attempt to change unfair dismissal laws the Workplace Relations Amendment (Fair Dismissal) Bill. This Orwellian renaming fools no-one. Its real intent is the Small Business (Capricious Sacking Now Allowed) Bill. It is fundamentally unfair to discriminate against one class of employees.
The Government makes the point that the new law would make it more likely that small businesses would employee more people. Maybe so, but under that theory all sorts of employee and public protections could be removed in order to create employment. In any event, the Government’s claims about the new laws creating 53,000 jobs are untested. There may be some, but it would be difficult to quantify.
The Government does have a point, though, in asserting that the present unfair dismissal laws act as a deterrent on employment. They are cumbersome and expensive. They should be reviewed to make the process less onerous. But the changes should be made across the board. If the laws put unfair onus on small business, they put unfair onus on medium and large businesses. If the law deter employment and create inefficiencies in small business, the same holds true for medium and large businesses.
The Government should set out precisely what it is about the existing laws that make the employment-unfriendly and why they are a burden. The Government should then present measures directed at those points.
It should look at things like restricting pay-outs, tighter scheduling of pay-outs in relation to length of service, a more streamlined system of standard forms for documenting warnings and so on.
Exempting small business completely from fair-dismissal requirements will result in some (perhaps many) small businesses abusing their power. They will return to past habits of sacking employees who turn a certain age and become eligible for a higher award payment or sacking and re-employing employees at will as business turns up or down or capriciously sacking employees because they think they might get someone better or a friend or relative wants a job.
The Minister for Small Business, Joe Hockey, made some jibes about the former union association of Opposition Leader Simon Crean in this context. It is misguided. By and large unions are stronger in medium and large businesses. Besides, if the Government takes away rights that employees can enforce themselves (or through the Employee Advocate), those employees will inevitably seek help from somewhere else – unions. The Government’s law will increase union influence, not decrease it. And Australian industrial relations law will return to the bad days when the remedies for dismissal did not turn on the merits of the case, but of what union muscle was available to the dismissed employee.
The Government should do the hard work in identifying what is wrong with existing law and its operation and amend it across the board.