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Barry Cohen | March 31, 2009
The Australian

HE was living proof that some mothers do ‘ave ’em. The Frank Spencer of eco-tourism. Everything he touched, walked past or looked at broke, exploded, cracked or gave up the ghost. Accident-prone would not even begin to describe the trail of devastation that followed him around our wildlife sanctuary.

The water pump had to be switched on daily. He burned it out. Every sprinkler he looked at broke. Snakes in his care escaped and scared the wits out of visitors. I won’t even begin to describe his efforts in the kitchen. A delightful young lad, but a one-man wrecking ball.

Did I sack him? No way! With the unfair dismissal law hanging over our heads, I couldn’t afford the thousands of dollars I might have to pay him in “go away” money.

Fortunately I was able to arrange for his departure while he was still in his trial period, avoiding a nervous breakdown and halving my insurance premiums.

Then there was the young guide, unquestionably good at her job but prone to arrive at work the worse for wear, boasting about how she had got smashed the night before. That was her business. Our point of departure occurred when her bacchanalian excesses resulted in her phoning in sick just when we were expecting a large tour group. The background music and raucous laughter gave her away.

Her enforced departure landed us in the Industrial Relations Commission where the beak informed me that “she hadn’t a leg to stand on”, then told me to make her an offer.

Further back, when I was in the fashion business, our ladies’ wear manager took us, in today’s prices, for more than $100,000. When we discovered the shortfall, she stormed out and returned that week to her homeland, South Africa. We were to hear later that three other stores had suffered a similar fate.

I could go on and on and on. During 50 years of running small businesses, the untold stories would fill an encyclopedia. Most employees were honest, loyal and hardworking, and no sane employer would sack them. Then there were the others.

Few will be surprised to learn that I am not an admirer of the unfair dismissal clauses in the recently passed Fair Work Bill. In fact, I detest them. The Government places great stress on the rights of employees while ignoring those of employers.

The Government says the electorate gave it a mandate at the last election to repeal Work Choices legislation and the unfair dismissal clause in particular, which defined a small business as one with fewer than 100 employees. It is now 15.

The Government undoubtedly has a mandate but that is hardly surprising when 85 per cent of the workforce consists of employees.

Being popular, however, doesn’t make it right. No one favours unfair dismissal but fairness is in the eye of the beholder. Show me a sacked employee who believes they were fairly dismissed.

Some will argue that there are provisions in the act for them to be dismissed fairly. That is true, but it is rare because there is no way to legislate for the thousands of incidents in the workplace that can lead to dismissal. It’s like legislating for disputes in marriage. Then try catching a thief. It’s nigh on impossible.

Leaving aside misdemeanours and criminal behaviour, what if you just don’t get on? What if staff members are doing their job but you can find someone who can do it better?

Unfair? Unlucky? Definitely, and it’s difficult for most employers, who hate dismissing anyone, but for a business to survive sometimes it is unavoidable. Provided the person laid off receives their entitlements, the employer has fulfilled their responsibilities to the employee and the business.

Reverse the situation. What happens when an employee of many years, who has been well paid and well treated, gives notice for any number of reasons: better pay, fewer hours, promotion? Should they be stopped and forced to pay the boss for their unfair departure? The idea is absurd.

The depressing part about this debate is that the Coalition, while opposing unfair dismissal, has argued about numbers, not the principle: theright of employers to choose their staff.

What sort of person becomes a small-business person? Usually someone who, after a number of years as an employee, decides to strike out on their own. Making money is important but not the sole factor. They invest their life savings, mortgage their home and double their workload to be their own boss.

What can go wrong usually does: 70 per cent don’t make it through the early years. Forget the 38-hour week, it’s 60, 80 or more.

When the wheels fall off, as they do periodically, it’s sleepless nights trying to work out how to pay the interest, wages and rent, and handle government red tape.

Most wonder what possessed them to leave the safety of permanent employment and the benefits that go with it: regular wages, holidays, sick leave. Those are long gone.

Their leisure time is now taken up filling out forms for the GST or worrying what governments will impose next.

There are 1.88 million small businesses in Australia with 3.75 million employees. They are the backbone of our free enterprise system, which, despite all its failings, is light years ahead of the alternative.

I’m amazed the Government doesn’t recognise the burden it is placing on small business by not allowing them to employ whoever they wish.

It claims unfair dismissal laws will not increase unemployment. It is deluding itself. Any employer with close to 15 employees will think long and hard before employing new staff.

The reason for this blind spot is not difficult to discern.

Increasingly, those who make up the Labor caucus have less and less business experience. Each successive parliament in recent years has Labor members and senators with the same background: teachers, lawyers, public servants, party apparatchiks and trade union officials.

Noble occupations all, but a vastly different mix from when I came to Canberra 40 years ago. We had all the above but we also had farmers, policemen, doctors, chemists, journalists, accountants, small-business people and more. Unfair dismissal legislation would never have passed caucus, let alone cabinet.

It’s never too late for a government to recognise it is in error. Let’s hope it has the courage to do so.,25197,25265381-7583,00.html


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