Email of 7 January 2011 to the Minister for Workplace Relations

Dear the Hon. Senator Evans,

Thank you for the letter of Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman, of 20 December 2010, which was written on your behalf in response to my email of 12 October 2010 to you.

The Attitude of Your Office and the Director of Government Policy of Fair Work Ombudsman

Mr Furlong referred to the facts that I had written to the Ministers for Employment and Workplace Relation a few times about the case law (Zhang v the Royal Australian Chemical Institute In; [2005] FCAFC 99 (Zhang’s Case)) since January 2008 and he had responded three times since 29 April 2010. Actually I had raised the matter to the then Government and Opposition since the case law was published in 2005. The Labor Government tried to address the issue but ‘the inapplicability of section 772(1)(e)’, as found by Mr Furlong, is still affecting all workers’ basic right and the society.

My concern, which has been supported by thousands peoples, dozens politicians and organizations who support the petition for the matter, is the case law requests workers to complain workplace illegalities ‘only to a Court or Tribunal’ (par 25 of Zhang’s Case) and therefore, is unconstitutional. Mr Furlong’s responses failed to answer my question. He has not directly referred to the case law—complaining workplace illegalities ‘only to a Court or Tribunal’. He doesn’t deny that the case law affects workers’ right to claim unlawful dismissal under section 772(1)(e) of the Fair Work Act 2009.

As written in previous emails, I understand Mr Furlong’s dilemma—he can say neither that the case law is wrong because you don’t give him the authority and he is paid to enforce the government’s policies including the case law, nor that the case law is right due to his conscience and professionalism; therefore, he advised me twice to ‘seek independent legal advice’.

As written in previous emails, the legal advices from the Fair Work Australia are all case laws are government’s policies. Many lawyers including industrial law expert support the petition against the case law like many Labor politicians. The independent legal advices are if employees refuse their employers’ apparently unlawful directions, the employees can be sacked and cannot win their legal fight for reinstatement. That is why I have been raising the matter to the Government for many years.

I know that is what your office and Mr Furlong want. They did not say the case law is the government’s policy and correct. That is the independent legal advice. They put their heads into the sand. They cannot do anything else because you or the Labor leadership has not authorized them to say anything about it or they do not want to take the responsibility at all.

In his letter of 29 April of 2010, Mr Furlong confidently wrote: ‘The Fair Work Act prohibits an employer from taking adverse action, such as dismissing an employee or altering the employee’s position, because the employee has made a complaint or inquiry in relation to employment to anyone’; however, the reality is different.

A good example is the well know dismissal of the Jetstar’s pilot in late 2010, Mr Eakins who complained the Jesstar’s safety culture to the media under section 341(1)(c) of the Fair Work Act. His union got industrial expert’s advice. There was no argument that Mr Eakins was sacked due to his complaints to the media. The Department of Workplace Relations and the Fair Work Australia did not say Mr Eakins could get his job back. The result was Mr Eakins could not be reinstated under the Fair Work Act because of the operation of the case law except making an open apology to his employer and suffering public humiliation. His union boss Mr Barry Jackson said he expected ‘stronger whistleblower protections’.

The High Court Registry’s advice was nothing could change the case law except the government takes the matter to the High Court.

Mr Furlong failed to comment on that. Mr. Furlong wrote: ‘This issue has been dealt exhaustively’. He might consider he has done his best. He cannot change the Labor Government’s policy. If that is the case, I have to write raise this issue to you again because from my view point:

a.  if the Government holds the case law is correct, it should inform employees to complain workplace illegalities ‘only to a Court or Tribunal’ and how to do so as, for the time being, employees cannot complain workplace illegalities to ‘a Court or Tribunal’ in ordinary circumstance

b.  If the Government holds the case law is wrong, in my opinion, the Government should express its concern publicly and do something to correct the error. If your office cannot make a decision on this matter, it can transfer the matter to the Prime Minister’s Office. If the Prime Minister cannot make a decision, then let the voters decide it. In summary of this section, please directly answer the question whether the case law—employees should complain workplace illegalities ‘only to a Court or Tribunal’—is wrong.

The Issues Dealt by Mr Furlong

‘(a)  Reinstatement continues to be available a remedy.’

Reinstatement has been a remedy for unfair dismissal under the previous Workplace Relations Act 1996. Why is the Labor Government bothered to add extra protection? It is because everyone knows it is too hard to be reinstated under the unfair dismissal law. In the pilot’s case mentioned above, Mr Eakins could not be reinstated under the law of ‘General Protections’. Therefore the ‘General Protection’ law does not work better than the unfair dismissal law in respect of reinstating employees who are sacked due to their complaints.

(b)  The case law breaches the Termination of Employment Convention Mr Furlong referred to section 772(1)(e) of the Fair Work Act ‘the filing of a complaint or …or recourse to competent administrative authorities’, said ‘This is based on identical words used in the Termination of Employment Convention’. On the face of them, they are not consistent with the case law—‘only to a Court or Tribunal’. In my opinion, that is why he has not quoted the case law in his letters. Mr Furlong referred to my quote from the Report of the Committee of Experts: ‘legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law…’ (emphasis added). However, he hinted the following paragraph of the Report, which is: ‘the existence of guarantees providing protection against retaliatory measures for a person who lodges complaint with the appropriate body…’ (emphasis added by Mr Furlong), corrects the paragraph I referred to.

It is strange to me that Mr Furlong understood the Report that way. In my opinion, if the Committee had ever doubted about the paragraph I referred to, the committee would:

(i).  have simply deleted that paragraph or
(ii).  have used the wordings—lodges of complaint with the appropriate body—instead of ‘the filing of a complaint or …or recourse to competent administrative authorities’.

On the face of this section of the Report, the paragraph I referred to explains ‘the filing of a complaint’; the paragraph Mr Furlong referred to deals with ‘or recourse to competent administrative authorities. Mr Furlong is well educated he should know why the word—‘or’— is used here. ‘Or recourse to competent administrative authorise’ does not affect or put restriction on ‘the filing of a complaint’. He should know this, except trying to mislead or deceive the public. Nevertheless, ‘recourse’ is used here. That is when ‘denounce’ does not work, the next step is to ‘recourse to competent administrative authorities’.

Furthermore, as mentioned above, Mr Furlong asserted that the Labor Government held employees have the right to make complaints to their employers. Why does he try to allege the Report held that employees have no right to make complaints to employers? Nevertheless, in his previous letter he even believed to the effect that the court in Zhang’s Case should hold ‘that any one of three circumstances could be relied on under s. 170CK(2)(e):

‘1.  the filing of a complaint by the employee against an employer involving the alleged violation of laws or regulations

‘2.  the employee’s participation in proceedings against an employer involving the alleged violation of laws or regulations.

‘3.  the employee’s recourse to competent administrative authorities.’ Mr Furlong contradicted himself. Now he believes only the third circumstance could be relied on, not the first one.

(c).  Employees can claim reinstatement on ‘a discriminatory ground (race, colour, sex, sexual preference, age, etc.)’.

I cannot understand why Mr Furlong considered that was a new issue risen in my email except he tried to change the issues of concern. The cases referred to in my websites include sacked employees who were young white male employees.

( d)  There is no need to protect employees’ right of complaint against workplace illegalities because there are many statures prohibiting employers from conducting workplace illegalities.

According to Mr Furlong’s assertion there is no need to enact the ‘General Protection’ law of the Fair Work Act at all. There is no need to give employees right to complain and refuse apparently unlawful directions given by their employers.

Mr Furlong first asserted ‘the inapplicability of section 772(1)(e)’ but failed to write down the cause of the ‘inapplicability’. Then he contradicted his own assertion saying: ‘All Zhang’s Case established was that the ambit of the unlawful termination provision did not extend to complaints made internally to the employer alone’. Mr Furlong is a legal expert. If he had truly believed what he wrote, he would have analysed why Zhang’s Case law is right to say that complaints should be made ‘only to a Court of Tribunal’ and why many Judges and Commissioners only referred to paragraph 25 of Zhang’s Case, which contains ‘only to a Court or Tribunal’, not other paragraphs.

Mr Furlong referred to Jennings v Salvation Army [2003] FCA 1193, which held WorkCover is not the competent administrative authorities defined by the Convention because of the no-fault compensation scheme. There is no real ‘no-fault compensation scheme’. If an employer believes he has no fault and responsibility, the employer, of course, does not want to pay, and WorkCover will not support an employee’s claim if it finds the employer has ‘no-fault’. The real term of the ‘no-fault’ is that even though the WorkCover decides that an employee should be compensated it will write down that the employer has a fault because a fault finding in writing may cause further problems for the employer. Furthermore, the Convention and Report do not say that a competent authority has to be an authority that does not manage a ‘no-fault compensation scheme’; therefore, Jennings’s Case does not conform to the Convention and Report. Put another way, Mr Furlong has not found any ‘competent authority’ to which that mistreated, coerced or bullied employees can complain.

In Damien Warren Weier v Modern Alarms - [2007] AIRC 432 (4 June 2007), the Court clarified: ‘the scope of [772(1)(e)of the Act] is limited to complaints made to tribunals and courts, and not to other bodies constituted by acts of parliament for (part) purposes of investigation and resolution of employment-related complaints. On this reading, a complaint to the Office of Workplace Services or the Employment Ombudsman would not constitute a complaint for purposes of [772(1)(e)of the Act]. Nor would a complaint to the Australian Taxation Office in respect of non-compliance with the Superannuation Guarantee legislation’ (par 44 of the judgment).

In my email I clearly wrote that Zhang’s Case is a strike-out case. The judge could not make any finding except assuming all claims made by the applicant were correct. If the judge had had anything unclear he would have had heard the evidences. He struck out the case because it was clear that the applicant did not complain ‘to a Court or Tribunal’. Mr Furlong is a legal expert. Strangely, he failed to make any comments on my assertion, but repeated what he had written in his previous letter that the judge found ‘the evidence was unclear’ and the judge made findings. Seemly, he believed that a lie repeated a thousand times becomes a truth.

Mr Furlong asserted: ‘Unless an employer is aware of complaint, the complaint cannot be the basis for the dismissal.’ In Zhang’s Case, the union’s involvement is a fact. I have difficulty to understand why Mr Furlong ignored this fact when he made his assertion. According to his assertion Zhang’s Case is wrong. I guess he wants me to raise this issue to you because he has no authority to say Zhang’s Case is wrong.

Enclosure:

1.  My email of 12 October 2010 to the Minister for Employment and Workplace Relations

2.  Mr Furlong’s response dated 20 December 2010