The Hon. M.J. ELLIOTT: I rise to oppose the second reading of this Bill. I am not sure whether I am surprised or disappointed that the Government has not decided to let this Bill fall off the Notice Paper at the end of the session. There is a danger of the Bill becoming the issue rather than matters which the Government claims it is seeking to address becoming the issue. This would be the most extreme legislation I have seen in the Parliament in the 13½ years that I have been here. It is very close to evil in my view, and the people who promote this Bill are either terminally evil or terminally stupid in the path that they are following.

The Hon. R.R. Roberts: Or both.

The Hon. M.J. ELLIOTT: Both is a possibility. That is what we have with this piece of legislation. Australia is a place that I am proud to call home. It is a society that I have been very fortunate to have been born into and raised within. It is a society of the fair go. I do not know of a better place than Australia. There are some warning signs—and this legislation is one of them—that some people do not want to keep it that way. There are some people who believe in the survival of the fittest, as they might see it—social Darwinism. They want to take us down a track to be like some other societies—like the American society, which has the most enormous wealth and the most enormous poverty. America is a country which imprisons more of its people than does anywhere else, the place where to get any health assistance you have to have an income of half the poverty level before you are entitled to anything that approximates with our Medicare.

That is the sort of society some people are dragging us towards; and that is the sort of society that this Bill is taking us towards as well. It is a piece of legislation that is biased towards one segment of the community. Industrial relations is a terribly difficult area in which to work—there is no question about that. It is an area that divides this Parliament and members of this Parliament more than anything else, and it is a great pity that it does. We have to have a piece of legislation for industrial relations that works fairly for everybody. I do not believe that that is what is being offered in the legislation before us.

I take just one issue from the legislation: the question of unfair dismissal. I do not dispute that the unfair dismissal process is not working well for people at present. I do not dispute that some employers have had some bad experiences with the unfair dismissal process, but that does not justify taking away the right of an unfair dismissal claim from a significant section of the work force, as this legislation does. There is usually more than one solution to a problem. The solution we are being offered here will work for only one side of the industrial argument. It is a solution that will work for employers because it simply takes away the right of an unfair dismissal claim from one section of the work force.

Some employers who seek a solution will look at this and say, `Well, look, it solves my problem.' To them I say, `Do you care about the sort of society we live in; are you prepared to look at other solutions?' The argument to me is not about whether or not we should seek further refinement in this area and whether or not it can work better. The question is whether what the Government is offering here is fair and reasonable. I believe it is not, because in fact it looks after only one side of the argument. It looks after only one of the two groups involved in the debate. We have the employer and the employee, and it is reasonable that we seek to find a solution which is fair and reasonable to both.

The way that was resolved eventually was that the Government arranged for meetings which involved representatives of Liberal, Labor and Democrat, representatives of the Employers Chamber and representatives of the UTLC who sat around the table. After a series of meetings where I suppose some general principles were agreed to, the representatives of the UTLC and the Employers Chamber went away, worked out the fine detail and came back with a proposition which, with only limited further fine tuning, came back into the Parliament and was passed. I think it would be fair to say that a little more fine tuning could happen with that system, but it has worked extremely well.

While some people have complaints about the workers' compensation system to this day, I am not hearing many complaints about that particular part of the workers' compensation system. I do believe it has worked fairly well on the whole, except where lawyers have started playing their games in the conciliation and arbitration process. Unfortunately, the conciliators and arbitrators do not appear to be working by the rules of the court, rules which ensured that the parties themselves would be present, not just their representatives, so they could not then make the claim, `Sorry, I have to go back and seek further advice.' On the whole, it has worked extremely well, to the extent that people from other States as well as from two Provinces of Canada have come over to South Australia to look at it.

I ask the question of the Government in relation to unfair dismissals: why has it not endeavoured to run a similar process in seeking to find a resolution to problems relating to that matter? The option is open, but the Government has simply decided not to do it. It has decided to adopt legislation which, as I see it, is unfair and which has already been rejected in Bill form or regulation form on at least three occasions that I can remember. I do not know whether the Government is simply looking for confrontation, whether it is a political tactic (and, if it is, it is a strange one), or whether something else is driving it.

The Hon. M.J. ELLIOTT: Yes, I think that they try to outdo the people whom they represent. They have to be more extreme to prove their credentials. Some of the things coming out of the Employers' Chamber mortify me. I have very good relations with many members of the Employers' Chamber, and I have discussed these issues with many employers. I think that they are stunned by what the people who work for them, effectively, say from time to time. The Employers' Chamber, which claims to be non-political partisan, has its own credibility on the line as far as I am concerned, and I made that point when I met recently with the board of the Employers' Chamber and with key individuals—both bureaucrats and key employers within the organisation.

When the Bill was introduced, they said that they were not consulted. Early on, they made some observations about having grave doubts about certain aspects of the Bill, but lately they have followed the Party line and now say that the Bill must be passed. It is not a much better performance than they gave with the electricity legislation, when privately they were saying that they were extremely concerned, and still are, about the energy area. They are very concerned that electricity prices might rise, but politically and publicly they toe the Party line. Their own credibility is on the line while they continue to perform in that way.

If they want to be treated seriously, they need to learn that, if they do have concerns, they should damn well say so publicly and not just repeatedly follow the line, which is the Liberal Party line, when they often say different things privately. I know that the Hon. Nick Xenophon has had similar experiences with the energy legislation, and I have come across it in relation to this Bill when talking with various people. Publicly, they say the sort of things and write the sort of letters that get read into this place and so create an impression, which is a misleading one, as far as I am concerned, about what employers are thinking.

If they identify a weakness, it is a matter that can be commented on at a later stage and if, over a period, they simply have not fixed something of significance, I would have thought it would give grounds in any court that dismissal was reasonable. That sort of semi formalisation does not have to include huge amounts of paper work, but it would not only make things easier in terms of unfair dismissal claims but could be of benefit to the employer and employee because it could also be seen as a training adjunct. It is where an employee is being told where they need to fix things up and where they are going well. They would be told what is positive. In fact, I have more detailed ideas about that but, again, I am not seeking to offer solutions here.

I believe there are directions in which we can go. It would be of relief to the employer by perhaps offering other positives. We should be encouraging all workplaces to look for training opportunities and, although that is a fairly limited form of training assistance, at least some sort of feedback mechanism between employer and employee which identifies areas where more work can be done can be a great positive. It would be an even greater positive if it gives them detail about good things done in the workplace as well.

The Government also is looking to introduce individual agreements. Superficially, an agreement sounds attractive when it says, `Let the boss and the worker work out what works best for both of them and we have a happy world.' Anyone who proposes that is either a blithering idiot to think that that is going to work fairly, is simply deluding themselves or is just being evil. There is no way known that an individual agreement process will not be abused regularly. The frightening thing is that, if you are working in an industry where a certain percentage of the employers (I will not speculate about the number) start abusing the individual agreement process and, as a consequence, they become more competitive, an employer trying to compete is under enormous pressure to start striking the same sort of individual agreements. It is a lowest common denominator approach, and it creates a downward pressure on conditions. Theoretically, the legislation says there are protections: practically, anybody who lives in the real world will tell you that there are no protections at all. I do not believe that there is any process which gives individual agreements any opportunity to provide the protection available under other processes.

I believe that the Government really missed an opportunity to make enterprise agreements work better, but it is not too late. I do not understand, for instance, why the Government has not produced, if you like, a facilitation team. In relation to this Bill the Government proposed to spend a lot of money setting up this totally new process outside the Industrial Commission to drive the individual agreements. It was going to cost the Government a heap of money. The Government should have devoted that money—and can devote that money—to getting the enterprise agreement process to work a lot better. Enterprise agreements can allow for workplace flexibility in terms of individuals. Enterprise agreements have been struck that do exactly that, but they are not secret, one on one agreements where the power imbalance between the two people means that abuse is inevitable. I do not mean inevitable in every case but inevitable to a significant number of people.

The Government was told a long time ago that the Democrats would not agree to individual agreements, but, again, the Government has not sought to explore what the other possibilities might be. There is no argument about whether or not it is possible to achieve greater workplace flexibility or about whether or not employers and employees might not like to talk about how the place might work better for all of them: the only argument is about whether or not it will be a one on one process, that is, where it is a secret deal done between those two players. Why would anybody ever want that to be a secret deal? The only reason I can think of has nothing to do with protecting privacy but everything to do with protecting and enabling shonky deals.

In my view, for the most part this Bill is unnecessary; it is underhanded; it is unfair. We do have good legislation at present. I am not disputing for a moment that it could not be further finetuned, but we are not talking about finetuning in terms of what is happening here. There is already the capacity to negotiate individual workplace agreements as long as they conform to the requirements of the award. It is worth noting—and it was in the Advertiser on 23 June—that the Australian Bureau of Statistics figures show that South Australia has less workplace relation difficulties than most other States in the nation. The Government says that it aims to promote employer and employee partnership in producing workplace agreements and mediating difficulties. The Government claims that it aims to make the system more flexible and efficient by rationalising hindrances associated with the current situation. It claims that it aims to improve the overall and youth employment situation through the maintenance of lower and youth wages. There are serious doubts that these aims can be met. With regard to this partnership between employer and employee, the system is likely to become more adversarial and legalistic. There is some agreement that the restrictions on unions and the Employee Ombudsman, as well as the $100 minimum fee, create an adversarial `all or nothing context' which will result in more not less legal action.

In terms of the Government's aims to make the system more flexible and efficient by rationalising hindrances, the only additional flexibility will be felt by employers, and at least one group of South Australian academics, headed by Professor Andrew Stewart, has argued that these changes will result in increased costs, complexity and bureaucracy. The greatest incentives to taking on new employees are factors other than unfair dismissal. Any number of surveys have been done, including the Australian Workplace Industrial Relations Survey, that suggest that unfair dismissal is a low priority. I note that the Yellow Pages Small Business Index (February 1999) reports that, by far, the greatest disincentive for small business was lack of available work; in fact, as I recall, unfair dismissal comes in at about eighth or ninth. Of course, you have surveys such as the one done by the South Australian Employers Chamber. Whom did it survey? It surveyed people who had just been in the court on an unfair dismissal case. That was its sample.

The Hon. T. Crothers: The fact that you have a mechanism for unfair dismissals prevents strikes.

The Hon. M.J. ELLIOTT: That's right. What a remarkable sample to take. The sample of employers was those people who had been in unfair dismissal cases. Even among those, a significant number did not say that they had been put off employing. I repeat again: I have not said that unfair dismissal does not need further review and refinement, but that is not what is being offered here. Certainly, the priority has been put on it by the Government. The claims about its importance are grossly exaggerated, and this is nothing more than raw politics at work. Unions should not be undermined. The collaboration of employers and employees—and, in many workplaces, employees represented by unions—results in greater productivity, and health and safety. Surely, to reach the aims of this package, the State Government should be looking to facilitate better relationships between employers and unions.

In relation to the weakening of employee protection, through the creation of the Workplace Agreement Authority the State Government is shifting from the IRC focus of being satisfied that approval criteria are being met to the WAA's having no reason to believe that they are not being met. The Government is undermining hard won current award conditions. The State Government is working to undermine the current award agreements by giving individual agreements priority over collective agreements and putting an 18 month time limit on award conditions.

The Government is also seeking to restrict the Employee Ombudsman. The Employee Ombudsman has been described as `the union representative for non-union members'. Obviously, the independent voice of the EO could cause difficulties for the State Government's agenda—so they gagged him by cutting him out.

An honourable member interjecting:

This Bill revokes the rights of a significant section of our workplace. There may be minor problems with the current system such as the manner in which rising court costs see out of court settlements, but the Government should be talking about how we can handle unfair dismissals more effectively. Instead, in many cases, it proposes to remove them. New employees are not protected. Ineligibility of employees to call on unfair dismissal laws of up to 12 months begs the question: when is an employee not an employee? Someone can work like a full employee, be paid like a full employee, but not have the rights of a full employee. In relation to this question of no right of unfair dismissal in the first 12 months, in the small workplace sexual harassment is not an uncommon occurrence, unfortunately, and frankly, in the absence of willing witnesses—and that is also difficult in a very small workplace—a remedy under legislation which revolves around sexual harassment is not there.

There have been any number of cases where after sexual harassment has occurred the employer says, `Right! You're gone; you're sacked.' At least there was a remedy for that because, if the boss could not show good reason for laying off the employee—the boss is hardly going to say, `She wouldn't come across'—there was at least some recourse for an employee. I am afraid that is the real world and it occurs far too often and, being able to have a simple unfair dismissal with no grounds whatsoever in the first 12 months, is an invitation for higher levels of sexual harassment in the workplace.

Young employees are not protected. It is a situation similar to that above for young people, except of course they will not be paid as a full employee. The above two conditions could encourage unscrupulous employers to participate in swift turnover of young employees. So, you bring them on, pay them a youth wage and shift them out. That is what Woolworths and Coles have been doing for years. A great little lurk, that one! It is a pity someone was not protecting them. Significant social costs are associated with this Bill not only through the loss of genuine family times such as public holidays but in the desired decline in working conditions. There is the loss of protection for employees, and the indirect social cost of increased stress and financial pressure on many South Australian families could be immense.

The $100 lodging fee is intimidating. It is claimed that it is unfair on employers that current procedures are intimidating, but to younger and less affluent newly dismissed employees is it not also intimidating to impose a $100 application fee? This Bill is unfair. Possibly the only article that the Democrats could support could be the restrictions on the employment of children under the age of 14. Of course, a private member's Bill in the other place seeks to remedy that and that alone, but the Government is not big enough to simply let that pass through. Instead, it plays stupid Party politics when it knows that there would be support from all sides of this Parliament for addressing the 14-year-old lolly sellers. It should have gone through this place a long time ago.

In summary, it is important that this Bill be placed in a wider historical context—a history of gains made by unions and employee advocates. There have been many gains, and we have to remember history so that we do not repeat the mistakes, yet we are winding back. I am not sure whether we are going back decades. I reckon we are just about going back to the last century. We are being wound back—

The Hon. T. Crothers interjecting:

The Hon. M.J. ELLIOTT: Whilst there have been times when employers told stories about the dreadful things that unions did—and there is no doubt that, from time to time, unions have done some appalling things and, if they need to be brought into line that is fine, too—but unions—

The Hon. T. Crothers interjecting:

The Hon. M.J. ELLIOTT: Absolutely. Unions came into effect for a very good reason. They came into effect because significant abuse was happening in the workplace and eventually our society made a judgment that we were going to be a fair society and we accepted that unions had a place.

575I note the earlier speech of the Hon. Terry Roberts. I, too, thought that we were making real progress in the 1970s as we started looking at industrial democracy and at a genuine relationship which was based not on power but on mutual trust and understanding between employers and employees. That is being ditched and, instead, quite a different approach is now being adopted.

When one looks at the bigger picture, our concerns about this Bill become all the clearer. Four years ago, I think we successfully passed a good and fair piece of industrial relations legislation. There is no doubt that unions did not like some parts of it—as, indeed, employer associations did not like some parts of it. However, I think that is to be expected. If one has something that is balanced, it is fair to say that both sides would think that they could have got some more. I believe that we did get balanced legislation. I am not suggesting that it was perfect, but it is more in the line of fine tuning that we should have been looking for.

While there may remain some difficulties with respect to this legislation, they are minor. I believe that most of them can be fixed administratively. There is no need to remove unfair dismissal altogether and, in the process, revoke the rights of significant sections of our work force. The processes of agreement development and dispute negotiation place the individual at a clear disadvantage, and we can see no way in which to rectify this imbalance. Wages must be based on skill, not age. While we would be willing to consider training wages, we reject any link with age.

If there have been problems with the Employee Ombudsman and the unions in the workplace, the Democrats are unaware of them, and the Government has not demonstrated any. In this context, the severe restrictions on both parties is unwarranted. The Democrats are always willing to discuss new ideas that will improve the situation of all—and I stress `all'—South Australians, but we see in this Bill nothing new which is constructive.

We acknowledge that the establishment of a body to help produce enterprise agreements and to advise both employers and employees could be a useful development that would avoid later legal problems. This could be done administratively or it could even be done within the legislation, but it does not need to undermine the powers of the Industrial Relations Commission. Despite allusions to this aim on the part of this Bill, it does no such thing. It is unnecessary, it is underhanded and it is unfair. It is a Bill that significantly undermines the gains of employee advocates which have been hard won over many years.

The Australian Democrats cannot support this Bill, because it goes against our basic principle to be even-handed to employer and employee. I again ask the Minister to let this Bill fall off the Notice Paper at the end of this session (there is only a little over a week and a half to go) and then enter into serious discussions with all the players in the industrial argument during the long break. If there are problems (and I am prepared to acknowledge that there are problems, although I believe that they are over-stated), they are capable of being addressed in quite different ways from those which are currently before us. This looks more like Mr Reith and his minions, who just cannot admit that they got it wrong, or who really are as evil and as stupid as I fear: I am not quite sure which it is. But this is not the way that South Australians want to go. It is not contributing to the sort of society in which we are proud to live, and I and the Democrats will not be a part of this sort of legislation.