Never in the field of political endeavour, has so much been said about a law that nobody’s seen. The millions of taxpayer funds spent on the failed advertising blitz on the new Federal industrial laws have had an effect. Clearly, millions of taxpayers are much quicker to mute the telly and nip out for a pee, or pass over those full-page ads for the sports section.
There’s a lesson in it. Ordinary men and women form their opinions about workers’ rights, government integrity and the stability of their own and their children’s future jobs and mortgages from experience, not ads.
As a result of the ads, we have learned that workers’ rights to challenge an ‘unfair’ dismissal as opposed to an ‘unlawful’ one will go with the new laws. The former started out as the right to ask to be reinstated if a boss didn’t treat a worker fairly, though it’s become (through arbitration) a way of wringing small payouts in exchange for staying away from work. The latter is a common law suit for damages for breach of contract, which has to be pursued through ordinary courts, where most of us wouldn’t go except under duress, and rightly so.
Thanks Peter Nicholson
It’s a wise litigant who knows how their case will unfold, and how much it will cost. Any decent lawyer would suggest alternative dispute resolution or cutting your losses because if you lose, you’ll end up paying not just your own lawyers’ fees, but the other side’s costs, too. $30,000? Double that.
This risk is supposedly mitigated by the Howard Government’s proposal to pay up to $4000 for ‘meritorious’ legal claims. Humph. The number and availability of lawyers prepared to run no-win, no-fee cases is shrinking. Immigration lawyers, under another new Federal law, are going to be made to certify that their client’s cases have merit and risk personal responsibility if they fail under laws so tough, by design, that it’s very hard to make any such prediction. Which doesn’t mean such cases shouldn’t be run, the law and the facts and the process tested, when the consequences for people are so terrible.
How such lawyers could be denigrated by business and political spokesmen and professional opinionists (such as Janet Albrechtsen, in her acerbic, wee columns for The Australian) as running personal agendas and self-interested (Link here) is a conundrum. Most corporations have much greater access to the fee-charging end of the legal profession than ordinary Joes and Josephines.
And the noble-hearted who run cases for the poor and unpopular such as the Victorian lawyer, Eric Vardalis, who (with many others) tried to help the Bhaktiyari boys and other hopelessly stranded asylum-seekers don’t get rich out of it, nor high-paid appointments or other rewards. They pay for it: pariahs (to government), outsiders (to Establishment) and targets for the scores of other hopefuls who need their help too. They don’t share fat profits in big law firms; they pay real overheads and run old cars.
A peculiar outcome of the proposed industrial law changes is a possibly much broader role for Australia’s equal opportunity, anti-discrimination and human rights commissioners and presidents. They run the only domestic ‘human rights’ laws we have laws that prohibit discrimination, especially at work, and promote equality and a voice for members of grossly disadvantaged groups.
These laws have been criticised from the beginning initially (in the 1970s) by employers who thought they would make their enterprises unprofitable, which they didn’t; and in the 1990s by academics such as Professor Margaret Thornton of LaTrobe University who argued, in her book, The Liberal Promise, that they had failed to deliver substantive equality because they were so clumsily and half-heartedly structured as to further disempower the marginalised.
In a recent Melbourne University seminar Thornton went further, saying the legal protection against workplace discrimination had been watered down and made even less effective by the growing ‘diversity’ industry, which fuzzily encourages toleration and inclusion of all ‘difference’, and in the process adulterates attention on the real disadvantage of working mums and dads, women, racial and religious minorities, and workers with disabilities.
Thornton rightly pointed out the ongoing, worrying reversals in employer-initiated appeals against discrimination findings by specialist tribunals. In particular, she focused on generalist appeal courts, such as the Victorian Court of Appeal, which continue their decade-long tradition of prioritising the preferences and discretions of employers at the cost of their employees’ options.
For instance, in the notorious Schou decision, in 2004, the Victorian Court of Appeal, held that an employer (in this case, the Victorian Department of Parliamentary Debates) could lawfully refuse to accommodate a reasonable and simple request by the mother of a sick child to let her do her editing work from home, sometimes, via a modem. She just could not prove, as the Court said that she had to, that what she wanted (as a working parent) was ‘as efficacious’ as the employer’s general rule, that employees work on the premises while Parliament was in session.
The views of some judges haven’t changed much in 25 years.
But cynicism about the law and the judicial system, doesn’t take us anywhere. We must work with what we have. Diversity is at least comprehensible. Justice is a possibility, to be worked for. In the current set up, workers dismissed or treated unfairly for discriminatory reasons can make complaints to statutory office-holders in every State and Territory and in the Federal sphere, for nothing. They have a chance to sort out ‘substantive’ grievances in a conciliation process, which is better than finding and risking $30,000 in a court, you’d think.
And these office-holders have standing, either supporting complainants to run their cases in the specialist tribunals where failed conciliations lead, or, as the WA Equal Opportunity Commissioner Yvonne Henderson has recently done, initiating things.
Henderson opposed an application for an exemption from WA’s race discrimination laws made by an Australian-based, would-be armaments contractor to the US government, who wanted, to compete for business, to be able to promise it would employ only US and Australian nationals, to meet the US’s security requirements. The WA Equal Opportunity Tribunal recently granted the application.
Not only did Henderson take a stand against the application, which neither her Victorian or Queensland equivalents had done when similar applications were made in their States, she promptly announced that she would appeal, to protect the ‘equality’ purposes of her Act [link: www.equalopportunity.wa.gov.au/pdf ]
So, there are champions, sometimes. We should value them more.
New Matilda invites readers to an IR forum – ‘Unequal Power: Who will be the big losers in IR changes?’ next Tuesday, 8 November, at the Sydney Mechanical School of Arts (Mitchell Theatre, Level 1, 280 Pitt Street, Sydney).
Time: 18.00 for 18.30-20.30. Admission free but please book (02) 9262 7300
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