Tuesday, April 10, 2007

Email to Victorian Premier Bracks MP on 10 April 2007

Dear the Hon Bracks MP,

Thanks for your response through Mr Geoff Walsh. Apparently you believed that our petitions for people’s fundamental constitutional right to obey law at work are unconstitutional, not that the case law made by the Full Federal Court regarding Hilda’s case is unconstitutional.

Nevertheless thank you for your time and attentions and for providing the reason of not supporting the petitions.

The Federal Courts did not deny that Hilda’s complaint about her boss’s unlawful instructions and activities were right but held that it was vexatious to seek support and protection from the Federal Courts against the retaliatory dismissal.

Therefore, under the case law of the Full Federal Court, employees have no right to say: “no”, to employer’s unlawful instructions because the whole system will not provide any protection to the employees from retaliatory dismissals. Obviously, you have no problem with that and want to “encourage the development of fair and cooperative workplaces” based on that. If I am wrong please correct me.

The underlying questions of the petitions are whether this country really operates under the rule of law and whether people, judges and parliamentarians in particular really want that this country operates under the rule of law.

The Cover Clause 5 of the Constitution bestows upon people the right and obligation to uphold and obey law. The whole system including the legal system ought to provide both support for people to obey and uphold the law, and protection from any retaliations.

Under the Constitution, section 170CK(2)(e) of the Workplace Relations Act 1996 (the Act) particularly provides such protection for peoples to “denounce” unlawful instructions and activities at workplace. (see the attached “several legal points”) However, the Full Federal Court constructed the “denounce” at workplace as filing a complaint to “a Court or Tribunal” even though there is no such law allowing an employee to file complaints to “a Court or Tribunal” about his or her superior’s unlawful instruction and activities in normal circumstances before the employee is dismissed.

When enacting the unlawful termination section of the Act in 1996, the Federal Parliamentarians, in our opinion, really wanted to provide the protection to people who obey and uphold law under the Constitution at work. That is the people at work are able to say: “no” to unlawful instructions and activities and the unlawful termination section of the Act provides employees protection from retaliatory dismissal.

However, the Full Federal Court’s construction of the unlawful termination section of the Act is to the effect that the Federal Parliamentarian actually wanted people at work first to say: “yes” to unlawful instructions and activities, follow the unlawful instructions, cooperate with unlawful activities, and then try to find a way to complain to “a Court or Tribunal” about the unlawful instructions and activities. Otherwise the employer who acts unlawfully can lawfully punish the employee who tries to lawfully opposite the employer’s unlawful instruction. If that was the really intention of the Federal Parliamentarians, those Federal Parliamentarians would have enacted a particular law to enable the employees to file a complaints to “a Court or Tribunal” before their dismissals. However no such particular law has been enacted. It well indicates that the Federal Parliamentarians of 1996 did not have such intention. It is hard to imagine that the Federal Parliamentarians prefer to provide protection to employees, who act unlawfully, rights to unlawful dismissal from retaliatory dismissal other than to provide protection to employees who act lawfully. Put another way, the people at work can be qualified for protection from unlawful dismissal once they become unlawful accomplice first in accordance with the Full Federal Court’s judgment. Therefore the Full Federal Court actually requested that employees ought to follow any unlawful instructions and activities first. That is why we say it is invalid under the Australian Constitution because the Constitution requests the people at work to follow the law first.

In our opinion the whole system: the Courts, the Government and the Parliaments ought to provide both sufficient support and sufficient protection from retaliatory actions to people’s constitutional rights and obligation to obey and uphold law at work.

You did not express that “any specific protections for the rights” of people should not be provided under the Australian Constitution. Implicitly, you have no doubt about it. However, your advice is to the effect that “any specific protection for the rights of employees” couldn’t be provided under the “Australian Constitution”. It seams that you believe that employees are not decent enough to be the “people” referred to in the Australian Constitution; therefore, the work class at work have no right and obligation under the Constitution to obey and uphold law, so that no “specific protection for the rights of employees” to obey law can be provided under the Australian Constitution. If I am wrong please correct me.

That is why the petitions request the Parliaments to “ensure that employees’ rights under the Constitution are upheld by the laws and courts”. Obviously, you have no interest in upholding such rights because you held that “the Australian Constitution does not provide any specific protection for the rights of employees” even though you might believe workers’ rights are the heart and soul of the Labor Party. If I am wrong please correct me.

This is a matter as to whether we can say: “no” to unlawful activities. This case indicates well, how the system technically allows people with power to act unlawfully and disallow vulnerable people to act lawfully when conflicting with the interest of people with power.

We believe: people’s rights at work under the Constitution are worth fighting for, and it is for the wellbeing of this country in the long term, despite frustrated by the difficulties we have faced.

Thanks for your response anyway.

(files below are downloadable as .doc files)

Mr Geoff Walsh's Email of 5 April on behalf of the Victorian Premier Bracks

Several Legal Points