98 SITUATING HUMAN RESOURCE MANAGEMENT
of the AIRC had the capacity under the Constitution and under the (then)
Conciliation and Arbitration Act to deal with such disputes by conciliation
and arbitration (Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Mis-
cellaneous Workers Union of Australia(1987) 163 CLR 656;ReBoyneSmelters;
Ex parte Federation of Industrial Manufacturing and Engineering Employees of
Australia(1993) 177 CLR 446).Even after the High Court appeared to have
opened the way for the Commission to deal with arbitrary termination by con-
ciliation and arbitration, there were many ‘grey’ areas, and enforcement of the
right not to be unfairly dismissed which was inserted in most federal awards in
consequence of theTermination, Change and Redundancy Casein 1984 (1984)
8 IR 34, 9 IR 115 was seriously flawed by reason of the fact that it could not
provide the basis for reinstatement of, or the payment of compensation to,
arbitrarily dismissed employees. These shortcomings and uncertainties led the
Keating Government in 1993 to introduce statutory protection against unfair
dismissal for the first time at federal level (Pittard 1994; Stewart 1995).
The statutory protections have subsequently been modified on a number
of occasions. For example, in 1994 they were amended to exclude non-award
employees earning more than a prescribed (indexed) amount from accessing
the system, whilst in 2001 employees of less than three months standing were
denied access to statutory protection. Most dramatically, the 2005 amend-
ments entirely exclude employers who engage fewer than 101 employees from
the unfair dismissal jurisdiction and stipulate that it is not possible for any
employee to maintain an unfair dismissal claim where they were dismissed
due to the operational requirements of the undertaking (including that their
position is redundant). These changes mean that for many employees the only
recourse available in the face of arbitrary termination of employment would
be a (potentially costly) claim for unlawful termination on grounds such
as gender, age, race, disability, religion, or political opinion—assuming they
could establish the necessary element of unlawfulness. It must be recognized
that the pre-2005 provisions were sometimes (mis)used by disaffected former
employees, and unscrupulous advisers and agents, as a basis for unmeritorious
claims in the hope/expectation that the employer concerned would be pre-
pared to reach a financial settlement in order to avoid the costs of defending
the claim, however lacking in substance or merit it might be. These abuses
could and should have been addressed. But this could and should have been
done in a manner that took proper account of the fact that, for all its faults,
the earlier legislation did serve as an important incentive to ethical treatment
of employees in terms of the grounds for, and methods of, termination of
employment. The evisceration of that provision can only provide comfort to
the unscrupulous and the unethical.
Whilst the federal legislation does continue to provide some limited pro-
tection against unfair and unlawful termination, it has never provided any
real protection against unfair contracting. It is true that equal opportunity