Email of 3 June 2010 to Julia Gillard MP

Dear Ms Gillard MP,

Thank you for asking Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman, to reply my email of 25 March 2010 on your behalf on 5 May 2010 (His letter was emailed to me on 5 May but dated 29 April). However, he showed that he did not have the capacity to properly address the matter raised in my email.

1. Mr Furlong wrongly referred to ‘the Fair Work Act 2010’, which does not exist at all

He might try to show that he did not family the Fair Work Act at all, writing: ‘The Fair Work Ombudsman is the agency, established by the Fair Work Act 2010.’ I cannot find ‘the Fair Work Act 2010’. On the website of the Fair Work Ombudsman: http://www.fairwork.gov.au/Footer/Pages/Legislation.aspx, it refers to the Fair Work Act 2009. Furthermore, the Fair Work Ombudsman is established under section 681 of the Fair Work Act 2009, not 2010. He might assume that the matter I raised should be dealt with by the Fair Work Act 2010 in the future.

Please kindly clarify why Mr Furlong referred to ‘the Fair Work Act 2010’.

2. Mr Furlong failed to directly refer to the case law—complaining workplace illegality ‘only to a Court or Tribunal’ (Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC99 (3 June 2005))

He referred to the website, http://upholding-people-right.info, but failed to directly refer to case law. Implicitly, for his employment prospect, he was in a dilemma:
a. He could not say that the case law is wrong because it is a well established law;
b. He could not doubt that the case law might be unconstitutional as apparently you have not allowed him to say that;
c. He could not say the case law is correct because he believed that case law was incorrect and you might have directed him not to say anything about the case law.

Please kindly provide your opinion about the case law. Is it correct, wrong or doubtful?

3. Mr Furlong wrongly asserted to the effect that the Fair Work Act 2009 ‘is marked departure from the previous legal provision’ in relation to the law of unlawful dismissal

He referred to the website http://upholding-people-right.info. On the webpage http://upholding-people-right.info/unlawful.html, it clearly states: ‘The unlawful dismissal Law, sub-section 170CK(2) of the Workplace Relations Act 1996, substantially identical to 659(2)(e) of the Workplace Relation Act (Work Choices) Act 2005 and 772(1)(e) of the Fair Work Act 2009, is:
‘an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;’

He declared to the effect that a worker can claim unlawful dismissal, but was unable or failed to provide the section, under which a worker can claim unlawful dismissal after the worker is dismissed due to the worker’s complaint against workplace illegalities. He also asserted to the effect that subsection 772(1)(e) of the Fair Work Act 2009 ‘also applied prior to the commencement of the Fair Work Act. It is this provision that some of the workers in the case law cited in he documentation attached to your email relied on.’

Seemingly, he knew he had no capacity to deal with the issue. He was just playing at the matter. That was all he could do.

Please kindly provide the section of the Fair Work Act 2009, under which a worker can claim unlawful dismissal after the worker is dismissed due to the worker’s complaint about the employer’s illegalities ‘to anyone. This includes… an employer, union or to a government agency like the Fair Work Ombudsman.’ (as declared by Mr Furlong)

4. Mr Furlong found to the effect that ‘the filing of a complaint’ in subsection 772(1)(e) of the Fair Work Act 2009 is interpreted by the case law as not including employer, union and government agencies

He also found to the effect that the government acknowledged that subsection 772(1)(e) had been undermined by the case law, which requires workers complain about workplace illegalities ‘only to a Court or Tribunal’, therefore, got round the case law and enacted ‘a provision, separate [from] the unlawful termination one, which specifically protects employment-related complaints to whoever they are made.’

It seems that you did not give him the authority to tell me why the government could not challenge the case law in the High Court or reword subsection 772(1)(e) to give worker a right to claim unlawful dismissal under the law of unlawful dismissal. He suggested to the effect that while the law of unlawful dismissal is undermined, a worker can claim unlawful dismissal after the worker was dismissed due to complaints about workplace illegalities under another provision in the Fair Work Act 2009. He failed to provide the provision.

Seemingly, he suggested to the effect that the government’s policy or the Fair Work Act 2009 have two faces or can be explained in both ways: a worker have right to complain to anyone, but cannot claim unlawful dismissal under the law of unlawful dismissal. Put another way, subsection 772(1)(e) of the Fair Work Act 2009 gives an employer a right to dismiss a worker who complains workplace illegalities to anyone except ‘a Court or Tribunal’, while a worker have a right to complain to anyone under another provision of the Fair Work Act 2009, but cannot claim unlawful dismissal anyway under such provision. Therefore, we can say such provision or the government misleads or deceives workers.

Please kindly clarify whether subsection 772(1)(e) of the Fair Work Act 2009 is undermined by the case law or is in contradiction with another provision of the Fair Work Act 2009.

5. Mr Furlong deliberately avoided to directly deal with the case law, which interprets the subsection 772(1)(e) of the Fair Work Act 2009

On the face of his letter, he read all citied cases in my email, the attached documents and the website, but he deliberately avoided to refer to the cases, in which workers complained to unions and government’s agencies including Employment Ombudsman about workplace illegalities. He only referred to cases, in which workers only complained to their employers.

He referred to Stanislawa Bahonko v Moorfileds Community Anor [2005] FCAFC 116 and asserted: in this case ‘there was no ruling that complaints to administrative authorities were not protected. His assertion showed he knew the case law and other cases ruled: those ‘complaints to administrative authorities were not protected’ under the law of unlawful dismissal, which is identical to ss 772(1)(e) of the Fair Work Act 2009.

Furthermore, Stanislawa Bahonko’s case referred to the case law. It flies in the face of his assertion that ‘there was no ruling that (these) complaints to administrative authorities were not protected.’ He might argue that he only suggested that the case law referred to by the judge was irrelevant to the case and the judge made a mistake.

Please kindly provide your opinion on the reason why these cases referred to the case law.

6. Fair Work Australia declares there is no unlawful dismissal provision in the Fair Work Act 2009

According to Mr Furlong’s suggestion, I called Fair Work Online on 13 13 94. There is no option for unlawful dismissal. I chose option 5—the unfair dismissal option. My phone was transferred to Fair Work Australia. On 26 May at 10:10 am, Melissa of Fair Work Australia said there is no unlawful dismissal provision in the Fair Work Act 2009. The previous unlawful dismissal provision is equal to the court proceedings under the current general protection provision—s 340.

I could not understand why Fair Work Australia denies the existence of the unlawful dismissal provision—s 772.

I guess the reasons may be:
a. the government concedes that the case law undermines ss 772(1)(e) as I have raised the issue to you, your department, other departments and all Labor members of Federal Parliament for five years, and many members support my inquiry;
b. the government concedes that ss 772(1)(e) undermines s 341 and 342 due to the case law.

I am puzzled by why the government wants to keep the case law even though knowing the case law undermined ss 772(1)(e) and s 341 and 342. I guess the reason is that the Labor leadership believes that employees should follow all directions given by their employer including ‘apparently unlawful directions’. Employees have the rights to complain under s 341 and 341 but should not affect the relationships between the employees and their employers. The employers can sack the employees due to the breaking down of relationships and consequential issues.

If the case law is set aside, the difference between s 772(1)(e) and s 341 are:

a. s 772(1)(e) request an employer to prove that its employee’s complaint is not a reason at all to sack or retaliate the employee, while s 341 and 342 reverse the request, that is, an employee to prove that his or her complaint is the reason of the termination or retaliation;
b. reinstatement is the remedy under s 772, but a spare remedy under s 341 and 342. (Under s 170CH of the Work Choice 2005, even though reinstatement is the first remedy, almost no employees were reinstated.)

On the face of it, the government’s attitude is that it is unfair to an employer to reinstate an employee after the breaking down of their relationships. The Act’s name is Fair Work Act. The government’s concern is whether a workplace relation is fair to the employer, not whether the employer has broken the laws or whether the employee has a right to follow the law. Section 341 of the Fair Work 2009 particularly disallows a union to push an employee to exercise worker’s right.

The remedies clearly show that the government’s intention is that even though an employer breaches s 341 and 342, a Court or Tribunal should first consider other remedies, not reinstatement. Put another way, once a workplace relation breaks down, a Court or Tribunal should not try to reestablish the workplace relation under the law, a Court or Tribunal should try all methods to terminate the relation under the Fair Work Act 2009.

In my opinion, from both viewpoints of employees and employers, the government should clearly inform workers that they should follow all directions given by their employers, and the employers take fully responsibility of their employee’s activities. I kind of understand the government’s dilemma—it fully supports the employers’ authority in workplaces but on the other hand is too embarrass to declare that its policies (laws) are just for political propaganda, nothing else.

While the government takes employers’ authority more serious than the authority of the laws and regulations, for fairness, the government should clearly inform workers its attitude.

To address my concerns, please kindly provide your opinion on:
a. why the government diminish workers’ right to be reinstated comparing with the Work Choice 2005;
b. why the government wants to deny worker’s right to claim unlawful dismissal including the dismissals that workers are retaliated due to their complaints against workplace illegalities;
c. why Fair Work Australia denies the existence of the law of unlawful dismissal;
d. whether the government believe the employer’s authority is more important than the laws and regulations in workplaces.

In summary, I appreciate:
a. Mr Furlong looked at my email, the attached documents, the case law, the cited cases and the website;
b. he accepted to the effect that the case law, which interprets the subsection 772(1)(e) of the Fair Work Act 2009, ruled ‘that complaints to administrative authorities were not protected’ let alone to the employer or union;
However, you do not give him the power to say:
a. the case law is wrong or,
b. under the Fair Work Act 2009, a worker cannot claim unlawful dismissal after being dismissed due to the worker’s complaint against workplace illegalities; therefore, before the government takes any action against the case law or rewords subsection 772(1)(e), workers should follow the employers’ apparently unlawful directions to avoid retaliatory dismissals suffered by the workers in the cited cases and the ruling case.

I know you are very busy, but Mr Furlong’s email below saying: ‘please contact the original recipient of your sent email should you have any further queries or comments.’ I would prefer not to repeatedly write to you on the same issue, if the issue does not affect millions of people, is not about the constitutional principles, and have been properly addressed. Please help Mr Furlong and millions of people, and clarify the six aspects of the matter outlined above.

I look forward to hearing from you.

Please kindly confirm on receiving this email.

Enclosures:

Mr Murray Furlong’s email of 5 May 2010