An Industrial Relations Field Day


Fair Work Australia is yet again under scrutiny for the length of time it has taken to finalise the HSU investigations. The delay provides some ammunition for conservative commentators to again go on the attack against the independent employment watchdog. It is no great surprise that Janet Albrechtsen has recently used her weekly column in the Australian to deliver more mistruths about FWA.

Albrechtsen claims that FWA is a new industrial watchdog headed by former senior officials. FWA is hardly new. It’s basically a rehash of the former Australian Industrial Relations Commission (AIRC) with some increased powers. Given the length of the Howard government’s time in power, they had in fact appointed most of the senior members of the Commission by the time the Rudd government was elected.

If we look at the members of the AIRC in the dying days of the Howard government, we find that the Gillard/Rudd governments have only appointed two people to the President or Deputy President roles who were not already employed in senior roles in the AIRC. They are Deputy President PJ Sams and Justice Iain Ross.

Sams has a union background and history with NSW Labor. In 2004 he was named a Member of the Order of Australia "for service to industrial relations in New South Wales and as an advocate for improved workplace safety". He can hardly be seen as a union hack.

Albrechtsen describes the new head of FWA, Justice Iain Ross, as "a former judge and former ACTU assistant secretary." What she doesn’t include in this bio is that he was also a partner at the law firm Corrs Chambers Westgarth until 2007. The firm is a large commercial firm representing primarily the big end of town. She goes on to claim that his Honour is feeling the heat — presumably because Senator Abetz sent him a letter. (Incidentally, Abetz’s open criticism of FWA and correspondence with Justice Ross have taken place at the same time as Labor has been accused of politically interfering with the investigation.)

She also claims that both former FWA manager Tim Lee and current FWA manager Bernadette O’Neill refused to cooperate with police investigations. That’s not entirely true. They both believed that they were statutorily prohibited from providing assistance to any police investigation until the conclusion of the FWA investigation. As O’Neill told Senate Estimates, "As I have indicated, at the conclusion of an investigation the general manager has got a number of options, one of which includes referring conduct that is potentially criminal to the Commonwealth DPP."

In fact, in relation to the HSU Number 1 Victorian Branch investigation, we have now learned that O’Neill has asked the Federal Court to impose civil penalties upon three people in accordance with advice from the Australian Government Solicitor. 

In relation to the disclosure point, Albrechtsen refers to advice provided by industrial barrister Stuart Woods QC. Woods’ advice, which Abetz relied on in his most recent letter to Justice Ross, is that FWA does have the power during any investigation to disclose information to the police if they believe a possible criminal offence has occurred. So what have Lee and O’Neill done wrong? Presumably they have received internal legal advice to say that they can not disclose any information to police until the conclusion of the investigation. Now one silk states that that is incorrect advice.

Albrechtsen also fails to mention in Woods’ bio that he is a former employee of Freehills, another large corporate law firm mainly representing the big end of town, something that he has continued to do in his private practice as a barrister. (Not that any of this is particularly important. Like Justice Ross, it shouldn’t matter what your background is once you put on your robes: you are independent.)

Albrechtsen sees a grand conspiracy at play and claims that one possible explanation is that "union influence is hampering the proper working of FWA at a time when the Gillard Government cannot afford to lose Thomson’s vote on the floor of the parliament". As others have pointed out, if there are any criminal charges laid against Craig Thomson, it will take a considerable amount of time for any prosecution and a verdict to be reached. He would have to stand down only when convicted of a criminal act — and by that stage this term of government will be well over. Albrechtsen’s only support for the allegations of union influence seems to be the fact that some members of the FWA were once employed directly or indirectly by the union movement.

Finally, she calls for a royal commission to "get to the bottom of what’s happening within FWA." There do not appear to be any other current significant complaints about the internal functioning of FWA except the allegations surrounding these two investigations. They range from delay in finalising the investigations to allegations of political interference.

Bernadette O’Neill has already admitted that the investigation appears to have taken a long time — also pointing out that the only other investigation conducted under the old Act took 18 months to finalise. She also appointed an outside financial audit firm, KPMG, to conduct an independent inquiry. (We have now learnt that the Commonwealth Ombudsman, at the behest of the right wing HR Nicholls Society, will conduct a further investigation into whether the KPMG investigation is sufficient). O’Neill has denied any political interference felt by either herself, Lee or Nassios (the head of the investigation). 

If the outcome of the second investigation is not good for Thomson, it will be interesting to see if Albrechtsen still calls for the lengthy, costly sideshow of a royal commission.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.