Nick Xenophon (SA, Independent) Share this | Hansard source

Whilst I will formally move my amendment shortly, subject to the other amendments of the coalition and Senator Fielding, I am grateful to Senator Boyce for a world tour of thresholds for small businesses. My position is this: a reasonable definition for a small business in the context of unfair dismissal legislation would be 20 full-time employees. This is about taking into account the difference between the capacity of a small business to deal with an unfair dismissal claim and that of larger businesses which may have HR resources and the capacity to fight a claim. I think Senator Abetz makes a point about unfair dismissal claims—and I have done a few in my time, many years ago, for both employers and employees—that there is in those claims an element of commercial decisions being made where the merits were not the primary consideration. That is certainly unfortunate.

I believe that, as Senator Boyce says, Australia is out of kilter with other countries on the threshold; that 50 seems to be the ILO, EU and UK threshold for small businesses; and that there is a real issue with the hospitality sector, where, if you have two or three full-timers and 14 or 15 casual staff, some doing only six hours a week regularly, you would go over that threshold. But I feel comfortable about putting a figure of 20 full-time equivalents to the chamber. Unlike Work Choices, where there was no protection whatsoever for a business of less than 100, there is protection here even for employees of small businesses. It is administratively simpler and there is a fair dismissal code, and I think it is important that we take that into account. Workers in a small business will still have a statutory protection. There will still be a requirement for a warning in accordance with the code. There still will be a provision for natural justice. There still will be an ability to access relief if it is unfair. But it makes it simpler for small businesses, without the fear of being embroiled in costly litigation, as long as they comply with the code and do the right thing.

I will say more about my amendment when I formally move it, but the fundamental difference between my amendment and Senator Fielding’s amendment, which both seek 20 full-time employees, is this: unlike Senator Fielding’s amendment—and this is not a criticism—my preferred approach is to exclude the redundancy provisions. Whilst the government says there ought to be some consistency in the number 15 for redundancies and unfair dismissal claims, I see as two distinct concepts the entitlement for redundancy payout and the ability to make a claim for an unfair dismissal, whether those are via the code or not. My position is that the two should be kept separate. I do not want to see any change to the redundancy provisions that are currently proposed. I do not want us to shift from the figure of 15, but unfair dismissal claims are a separate matter altogether and I ask the chamber to consider that difference between my amendment and that of Senator Fielding. Again, it is not a criticism of Senator Fielding, but it is a different approach with respect to that.