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under common law, or state or federal anti-discrimination
laws.
By way of example, to proceed with a commonlaw
claim for reasonable notice an employee will
have to show the notice provided on termination
was not reasonable in all the circumstances, taking
into account such factors as the length of employment,
seniority or pay level. Employees claiming discrimination
will have to demonstrate they are being
sacked because of their age, impairment, parental status
or status as a carer. It will be much harder for the
majority of Australian workers to seek legal redress.
I would also argue that the litigation process through
the respective courts and tribunals will be far more
time-consuming, costly and protracted.
Howard insists that ending unfair dismissal will
not cause 'the skies to fall in' or 'the walls to come
crashing down'; that it will have a fairly minimal
effect on ordinary Australian workers, but will benefit
Australian employers and employees by promoting
greater workplace flexibility and employment opportunities.
Whether that actually happens is yet to be
seen. What is clear is that the changes will remove a
central plank of protection for ordinary
Australian workers. For them workplace
flexibility will mean job insecurity.
T HE KEY BENEFIT OF the existing laws is that they
protect workers from being dismissed in a 'harsh,
unjust or unreasonable' way. Employers who act in
this way are held accountable before the law, affording
workers a modicum of protection from an unscrupulous
employer. Simply by their existence, the laws
protect the vast majority of employees: employers
know that if they act capriciously they could face a
claim for unfair dismissal. This gives the vast majority
of Australian workers much needed protection
and a certain measure of job security.
The clear winners under the Government's proposed
changes will be employers who run businesses
with fewer than 100 employees, although even they
may well find they were better off under the existing
laws, which in the main provided a relatively speedy,
cost effective and efficient way of resolving claims.
The clear losers will be the 95 per cent of Australian
workers protected by the existing laws, particularly
those who will not have any legal avenues
of redress either at common law or under state or federal
anti-discrimination laws. In the main they will
be relatively unskilled or low-paid workers who have
limited tenure with their current employer. Unscrupulous
employers will be able to hire, for example,
unskilled younger or older workers or recently arrived
refugees, pay them the minimum wage, and get rid of
them when they like without providing a reason.
Howard says the effect of the new laws will not
be felt immediately. He is probably right. The most
vulnerable workers may well find that, over time,
their position will become more precarious; and
that under the new 'flexibility', being repeatedly
hired and laid off makes it extremely difficult for
them to obtain the necessary finance to buy a house.
That would widen the divide in our society between
the relatively well off and the marginalised. The
impact this will have on social cohesion is difficult
to predict but one would imagine it could only make
things worse.
The costs of the Howard Government's new legislation
to scrap unfair dismissal laws will take some
time to become apparent. As the current Act says, its
principal object is to ensure that all parties, employers
and employees, are given 'a fair go all round'. The
new laws will extinguish the fair go for employees
seeking legal redress. Where this leads our society,
no one can say.
One can say, however, given the way successive
Australian governments have consistently denied
outsiders such as asylum seekers and refugees a 'fair
go all round', it was only a matter of time before the
Howard Government decided it could treat insiders
the same way.
•
Nicholas Dunstan is a lawyer specialising in employment
law at Galbally & O'Bryan in Melbourne. He
worked as a legal officer for the Jesuit Refugee Service
in Sydney (1992), Bangkok (1997), and Phnom
Penh ( ~2000).
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