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Devious corporations, devious government, poor workers …

By Ken McKay - posted Tuesday, 12 July 2005

The federal government wants to eliminate the rights of workers to pursue unfair dismissal cases if their employers have less than 100 employees. The reason given is that employers are being tied up in cases before the tribunals costing thousands of dollars.

I worked as an industrial advocate for eight years with the Australian Workers Union and I wish to reveal some real life experiences of workers who were able to have their livelihoods protected by the tribunals after being unfairly dismissed.

The first situation involved the dismissal of a worker who was employed at a mushroom farm at Jimboomba. The worker was dismissed for allegedly working too slowly. Under oath, the employer indicated that the only measure he had taken was to replace him with someone that worked faster.


With no objective measurement, how could anyone make a comparison between the output of the existing employee and that of the future employee, especially when the future employee had not even been engaged in the job at the time of the dismissal.

The dismissed worker was engaged in collecting trays of picked mushrooms and taking them to the weighing area of the mushroom farm. Upon examination during the hearing, it became evident that the worker’s productivity was actually higher than that of his replacement. The Industrial Commissioner ordered his reinstatement. Under John Howard’s plans, this worker would not have got his job back.

Under the system being proposed by John Howard, this worker would have been denied the opportunity of even attempting to show that his dismissal was unfair.

I recall a situation where a worker was asked to assemble and operate equipment used to spray chemicals, despite the fact that he had not been trained and the legislation required operators of such equipment to be licensed. When this worker feared for his safety and refused to comply with this direction, he was sacked. Again, this worker got his job back because the Industrial Commissioner ordered his re-employment. Under the new legislation, had he worked for a company with less than 100 employees, he would not have even had the opportunity to argue his unfair dismissal.

I recall a situation where a shop assistant needed to go to the toilet, but an overzealous supervisor refused her permission to do so. This worker was too scared to disobey the supervisor’s directive and ended up wetting her pants at the check out.

Do we really want to see this situation being repeated around the country, where workers, knowing that they have no opportunity for redress against unfair treatment, have to suffer public humiliation or, even worse, undertake unsafe work practices to keep their jobs? Everyone who has worked for a union will have similar horror stories. Is this really the type of society that we want to live in?


These examples demonstrate the unfairness of this new system. I now wish to raise the issue of how employers will avoid having to face unfair dismissal actions.

With the threshold raised to 100 employees, employers will now embark on a rash of corporate restructuring, simply to ensure they will never again face an unfair dismissal claim.

Take for example a company with 3 sites employing 240 employees, 80 at each site. Under John Howard’s proposal the workers would be able to file an unfair dismissal claim if they were sacked, right? You would think so, but what would stop the firm from forming new entities to employ the workers, at each site, so ensuring no corporation employed in excess of 100 workers?

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About the Author

Ken McKay is a former Queensland Ministerial Policy Adviser now working in the Queensland Union movement. The views expressed in this article are his views and do not represent the views of past or current employers.

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