Garrett David: Employment Relations Amendment Bill — First Reading Second Reading 
Garrett David: Employment Relations Amendment Bill — First Reading Second Reading 
[Volume:651;Page:328] 
DAVID GARRETT (ACT) 
: 
 I rise to support the Employment Relations Amendment Bill for one reason and one reason only: it will foster and promote employment. I am able to say that because unlike members of the House on the other side—and I know there are many unionists over there and they are creating a wonderful show for the television audience and for union officers—I have practised employment law since it became a speciality in 1991. During that period I have handled approximately 150 personal grievance cases for unjustified dismissal for both employees and employers—in fact more often for employees. I cannot recall offhand any case during that period where the dismissed employee had been working for 3 months or less. There may be one—someone might find one in my name—but I could not think of one last night. 
That is no great surprise because when we did some research yesterday we found that the Department of Labour does not maintain accurate figures on length of service but what figures it does have show that the vast majority—about 80 percent—of personal grievances are brought by employees with service of 1 to 4 years. The next most common—10 to 15 percent—involve employees with service of 10 or more years. The next most common involve those with service of 7 to 9 months. So about 3 to 5 percent of personal grievance cases are brought by employees who have been in employment for less than 3 months. If there are members on the other side who have some experience in employment law and personal grievances they will know that that is the reality. 
I listened to the Green member Sue Bradford and what she said was very similar to the kind of scaremongering that happened after the Employment Contracts Act was introduced in 1991. What many people do not recognise is that that supposedly Draconian Act—“Draconian” is a favourite word of members on the other side—gave personal grievance rights to everyone. Prior to that Act one had to be a union member to take a personal grievance. There were predictions then just like those made by the Green member; there were predictions of mass sackings of unfair treatment of oppressive conduct and of all sorts of things. It did not happen. 
It is not going to happen under this bill either for some very good reasons. The employer does not want to go through that process. It is a complete hassle and a diversion. If employers are sensible and well advised when they take on employees they will get advice from an employment lawyer who will tell them that getting rid of an employee for any reason—even for serious misconduct—will take 3 to 6 months or more and will cost $3000 to $5000 in legal fees if they want to make sure they get it right. It has been a surprise to me in my 15 years in employment law practice how uncertain and unwilling employers are to dismiss someone without advice. They will need to take advice. Even if they get it right the dismissal can be challenged under the law as it is now. That means that the employer is dragged to the Employment Relations Authority or to mediation. Most competent employment lawyers will tell them to pay what we in the trade call “go-away money”—pay the employee $3000 or $4000 to go away. Any employer considering taking on staff who receives that advice—unless the employer is completely stupid—must absolutely utterly need a new staff member before stepping up to the brink. 
This bill will allow employers to take someone on and as Government members have said give them a go secure in the knowledge that for 90 days only they can dismiss that person without being dragged to the Employment Relations Authority or as an alternative being made to pay “go-away money” plus lawyers’ fees of say $5000 to $7000. But it will not happen. There will be about the same number of cases as now—3 to 5 percent—and I will tell members why. If an employer goes down that route and uses this provision improperly what happens? Firstly as I have said he or she will be up for 5 or 6 grand. The Hon Dr Michael Cullen said yesterday—in fairness I have to say I think he had not seen the bill at the time—that there would be dismissals for pregnancy and those kinds of things. The bill makes it clear that that cannot happen. The discrimination provisions in section 103 of the Employment Relations Act are preserved. Unlike what the Green member suggested it is actually not very easy to sack somebody for improper reasons such as pregnancy sexual harassment or racial grounds and hide it as a poor performance issue. It is very difficult. I can say that because I have been doing employment law for 15 years since the Employment Contracts Act came in and employment law became a specialty. 
I will tell members why most employers will not misuse this bill. If they need to hire someone else then what do they have to do? They have to go through the process again of advertising of interviewing at least once possibly two or three times of taking a deep breath and employing someone new of training him or her of inducting that person into the firm of giving him or her safety training—all those things. No rational employer wants to do that unless he or she has to. OK there will be some ratbags probably just like there are ratbags now who will take advantage of this law but they will be few in number. They will be 3 to 5 percent of employers. As for the rest someone like my mate down south who runs a liquor store could do with a new fork-lift driver at this time of year but he will not employ someone at the moment because he knows what he would have to go through if it went wrong. 
Hon Lianne Dalziel 
: He can use the probationary provisions now. 
DAVID GARRETT 
: Yes that is perfectly fine. They were introduced actually in the Employment Contracts Act. That terribly Draconian piece of legislation also introduced probationary periods. But as Government members have pointed out the problem with those provisions is there is no protection for the employer. I have advised employers on using probationary periods and the extraordinary detail that one needs to follow in order to get them right is a very real impediment to people being employed. It will not happen. We have the usual glass half-empty claim from the left that people will be sacked left right and centre for being pregnant for being black or for having the wrong-coloured eyes as one member said. It simply will not happen. 
This bill is a very sensible measure to promote employment. It allows employers to employ staff secure in the knowledge that for 90 days only and once only they will not have to pay go-away money or worse to dismiss them. The ACT Party is happy to support it.