The Guardian 6 December, 2006
Government comes clean
on loss of job security
Workplace Relations Minister Kevin Andrews has confirmed that the Howard Government's
extreme industrial relations laws leave Australian employees without effective protection
from unfair or arbitrary dismissal.
The government's dishonestly named WorkChoices laws removed unfair dismissal protection for
workers employed by a business with 100 or fewer employees. This stripped the rights to some
form of protection from nearly four million workers.
Despite all the government assertions to the contrary, it also stripped workers of those rights in
larger workplaces.
It was the Minister himself, through his own actions, who exposed the lie. Last month Kevin
Andrews asked the Australian Industrial Relations Commission (AIRC) to rule that it is lawful under
the government's industrial relations legislation for an employer who employs more than 100
employees to sack an employee on the basis of so-called "operational reasons", even if the
reasons for sacking that particular individual are neither reasonable nor fair.
Andrews' own submission to the AIRC unfair dismissal case of Village Roadshow Ltd and Carter
states:
"... if an employee is selected for termination due to operational reasons, the criteria adopted to
select the particular employee for termination are irrelevant ...
"Similarly, it is irrelevant whether the employer could have taken action other than terminating the
employee's employment….
"Therefore issues such as selection processes, the employee's preparedness to work elsewhere,
or the employee's preparedness to take a period of long service leave or leave without pay, or
whether the employer should hold off terminating the employment in the expectation that an
alternative position may come up in the future, or the suitability or appropriateness of any other
options open to the employer ... have no relevance in determining whether the reason relied upon
by the employer was an operational reason as defined."
Andrews' submission confirms that unfair dismissal protection for Australian workers have
effectively been shredded.
His previous assertions that there is nothing new about his "operational reasons" test are now
shown by his own submission today to be completely bogus.
For example, Andrews' press release of November 3, 2005, under the heading of "Dismissal for
operational reasons" states: WorkChoices will retain the current law on this issue."
But his submission to the AIRC accurately states that the "genuine operational reasons" exclusion
was introduced by his government's WorkChoices Act.
In arguing his case in the Commission against the rights of the Village Roadshow dismissal,
Andrews said: "The phrase 'genuine operational reasons' is a new phrase in the WR
Act…
"Accordingly the Parliament must have intended that the test of whether an employee's
employment was terminated for genuine operational reasons or for reasons that include genuine
operational reasons is something different…
"... that is a lower threshold than the test which is applied [before the legislation] to determine
whether a reason is a valid reason."
In another instance, in a doorstop interview on July 7 this year, regarding 29 workers sacked from
Cowra Abattoir, Andrews said that it would have been the same "if it had happened last year or the
year before" — pre-WorkChoices.
Andrews has consistently misled working Australians about this legal test that is now central to
whether unfair dismissal protection will apply to employees who work for a business with more than
100 employees.
This is the inconvenient truth that Kevin Andrews has been trying to avoid all year, but he has now
been nailed on the legal reality by his own submission.