Saturday, March 05, 2011

Email of 12 October 2010 to the Minister for Workplace Relations

Dear the Hon. Senator Evans,

Congratulations on your appointment as Minister for Employment and Workplace Relations.

1. Background

On 3 June 2010 and 7 July I wrote emails in relation to workers’ constitutional right to the then ministers. On 19 August I received an email response dated 2 August from Mr Murray Furlong, Director of Government Policy of Fair Work Ombudsman on behalf of the Hon Simon Crean MP.

I have pursued the issue since Zhang’s case law—workers complain about workplace illegalities ‘only to a Court or Tribunal’—was published in June 2005 (Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 (Zhang’s case)(par 25)). As workers cannot directly complain ‘to a Court or Tribunal’ against employers’ apparently unlawful instructions in normal circumstances, Mr Furlong found to the effect that Zhang’s case law ‘shut’ ‘the “unlawful termination” door.’ In the other words, for the time being, workers have to follow employers’ apparently unlawful directions if they do not want to upset their employers and to be sacked in retaliation.

I have been grateful for that you were willing to present the petition against Zhang’s case law in March 2007 to the Senate. I hope that workers’ constitutional right to follow the law will be upheld soon under your leadership.

I understand that Mr Murray, as a government’s employee, he could not say the government’s policy, which includes Zhang’s case law, was wrong; otherwise his own employment would be in dilemma. His job is to ‘enforce’ the government’s policy. Even though his job requests him to say that Zhang’s case law is correct, he did not say that despite I asked the question—whether Zhang’s case law was wrong—a few times in my previous email.

2. Zhang’s case law

In my email of 3 June 2010, the title of the second section is ‘Mr Furlong failed to directly refer to the case law—complaining workplace illegality “only to a Court or Tribunal”’ He avoided directly dealing with Zhang’s case law, even though this time he did better than his previous response by referring to the case.

In previous response Mr Furlong wrote he read my website At webpage, /unlawful.html, I wrote:

‘The unlawful dismissal law above was from the Termination of Employment Convention 1982 of the International Labour Organization after Australia Government signed the Convention. In ‘Protection against Unjustified Dismissal’ Report of Committee of Experts, International Labour Office, 1995, pars 115-117, the interpretation of the law is:

“Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labor Code or other legislative provisions. Thus, in a growing number of countries there are legal provisions to protect a worker against retaliatory measures should he denounce, for example, working conditions that fail to meet standards set by law, discriminatory practices in employment or non-compliance with occupational safety and health provisions…”

Bold is added on “denounce”. The Full Court of Federal Court in the principal decision referred to this interpretation but did not quote any part of it.’

On face of the above interpretation, the complaint is to the employer. The word ‘denounce’ is used at workplace. Certainly, it is not used in a Court or Tribunal. To a third party, normally the word ‘complaint’ is used. I only know complaint form. I have never seen a denounce form. If you can find a relevant denounce form, please kindly send a copy to me.

Mr Furlong found to the effect that ‘the limitation’ in s.772(1)(e)’ of the Fair Work Act 2009 (Fair Work Act) was put by ‘Zhang’s case’, and the ‘limitation’ disables the unlawful termination law. That is why the petitions against Zhang’s case law have been supported by thousands people, many organizations, political parties, local governments and Federal and State politicians.

In Zhang’s case the court held: ‘[“the filing of a complaint” to an employer] cannot be so on a plain reading of the subsection. Section 170CK(2)(e) speaks of ‘filing’ a complaint. An employee who complains to his/her employer does not thereby file a complaint. (par 25)’. The court clearly asserted to the effect that ‘the limitation’ put on the subsection was a convoluted ‘reading of the subsection’.

Why cannot the subsection be plainly read? Is a plain reading of the subsection against the Covering Clause 5 of the Constitution— ‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……’ or the convoluted reading made by the court? Implicitly, the court convolutedly read because, in my opinion, the court assumed workers did not know what apparently unlawful instructions were as law ‘cannot be so on a plain reading’. Based on such assumption, the court deliberately omitted the illegal issues in Zhang’s complaints to third parties, in particular, the Victorian Trades Hall Council’ response to Zhang’s complaint— ‘your situation is totally unacceptable. What your employers are demanding that you do is illegal …… Asking you to falsify records is illegal – and the company board and directors could be jailed,’—in spite of the court quoted another part of the response.

Mr Furlong did not mention Zhang’s communication with WorkCover in the case. WorkCover is a competent administrative authority, but Mr Furlong did not refer to it. Obviously that would affect his conclusion that Zhang did not communicate with ‘competent administrative authority’. I think his excuse for his omission was that he conceded to the effect that ‘the “unlawful termination” door is shut’.

The court omitted the WorkSafe Incident Notification Form, in which Zhang stated: ‘The company director gave me unlawful instructions to violate accounting standards and regulations, forced me to input wrong information to accounting record by awful phone calls, emails and by threatening my employment.’

I think the court’s excuse to omit above facts was that the bottom line set by the court was Zhang did not complain ‘to a Court or Tribunal’, therefore, ignoring above facts did not affect the conclusion—striking out Zhang’s application—like Mr Furlong’s excuse above. The court and Mr Furlong showed that they did not feel comfortable with these facts. Put another way, they did not want to show the real effect of Zhang’s case law. They believed that Zhang’s case law was apparently wrong and was not acceptable by the public.

Mr Furlong wrote: ‘the court found that the employer was not aware these communications.’
Mr Furlong as an experienced lawyer should know, a Court cannot make any finding based on the opposing party’s evidence in a striking out case. The Court struck out Zhang’s complaints by assuming every thing claimed by Zhang was true. Zhang claimed that she was terminated because of her complaints to the employer and third parties. That was the reason the Industrial Relation Commission referred Zhang’s matter to the Federal Court and wrote in the certificate: ‘An assessment of the merits has been indicated to the parties in the following terms: Based on the conflict of the factual situation and the need to hear evidentiary material the Commission is unable to issue an opinion.’ Therefore, the Commission’s opinion was the case needed to hear evidentiary material. In the other words, if the Commission had only relied on Zhang’s claim, the Commission’s opinion would have been that she was unlawfully terminated. On the face of the Commission’s opinion, the specialized Commission held that Zhang claimed that she had complained about unlawful matter to third parties.

Mr Furlong wrote: ‘The purpose of Article 5, according to the Court, was ‘to prevent retaliation against employees who make complaints to third parties against their employers’. This may explain the limitation in s. 170CK(2)(e).’ According to the context, ‘the Court’ referred to by Mr Furlong was the Court of Zhang’s case. But the fact is that the Court of Zhang’s case, following above quotation, specifically wrote: ‘For all those reasons, in my opinion, the decision in He is, with respect, correct.’ Therefore, Zhang’s complaint to the court was struck out because she did not complain ‘to a Court or Tribunal’ during her employment, not because she did not complain to a third party.

Mr Furlong looked at my website. At webpage—case.html, I referred to dozen cases, which had applied Zhang’s case law. Furthermore, in section 5 of my email of 3 June, I particurly referred to other judgemnts which applied the case law— complaining workplace illegality ‘only to a Court or Tribunal’. Mr Furlong did not reply to my point. He did not explain why his understanding of Zhang’s case law was different from other judges’ and commissioners’ understanding about the Zhang’s case law.

3. He’s case law

Mr Furlong referred to He’s case law—‘complaint to any external authority’ (He, in the matter of an application for Writs of Mandamus and Certiorari or Constitutional Relief against Lewin [2004] FCAFC 161(par 45) (He’s case)), and outlined that the court found He was sacked because he complained workplace illegalities. Mr Furlong found to the effect that He’s case law put ‘limitation’ on ‘the unlawful termination’ law. My concern is that such limitation is unconstitutional like my comment on Zhang’s case law.

In He’s case, the legal or unconstitutional point is clear:
(a) a worker has no right to claim reinstatement after being sacked because he complained about workplace illegalities;
(b) an employer can legally dismiss any worker who refuses to follow apparently unlawful instruction;
(c) a sacked work cannot reinstated under the unfair dismissal law because the employer has the right to retaliate and sack a worker who complains against the employer’s apparent unlawful instructions;

Mr Furlong wrongly wrote that ‘the Australian Industrial Relation Commission held that the unlawful termination provision in s. 170CK(2)(e) of the WR Act did not apply. The Full Bench of the Commission …agreed.’ It sounds that Mr Furlong read these two decisions. However the facts are that these two decisions denied any workplace illegalities. That was the reason the High Court remitted He’s appeal to the Full Federal Court. Why did the Commission and the Full Bench denied the unlawful issues in He’s complaint (par 37 of the He’s case)? On the face of it, the specialized Commission and Full Bench had believed that if He was sacked due to his complaint against workplace illegalities, he should be reinstated.

4. The limitations put by He’s and Zhang’s case laws disable the unlawful dismissal law and workers’ constitutional right; therefore the limitations are unconstitutional

Mr Furlong found to the effect that the limitations put by He’s and Zhang’s case laws breach the Termination of Employment Convention 1982 of the International Labour Organisation Convention signed by Australian Government because the ‘“unlawful termination” door is shut’.

Mr Furlong argued that the Government uses the unfair dismissal law and workplace right law to deal the problem caused by He’s and Zhang’s case laws. As said in section 4 of my previous email, the bottom line drawn by two case laws is that it is legal that an employer terminates an employee who refuses and complains about apparently unlawful instructions. He’s case is a good example. He was not reinstated.

Even though Mr Furlong is paid to enforce the government policy—Zhang’s case law, he showed that he did not want to enforce the policy—complaint ‘only to a Court or Tribunal’. I guess that was beyond the bottom line of his conscientious and professionalism. He has no authority to question the policy. Please let someone who has the authority to question the policy to respond to this email.

The main remedies for unfair dismissal and workplace right are almost same for the employees. The main remedies or reliefs are not reinstatement. Even though some employees can get some remedies, usually, if it is lucky, those remedies are just enough for legal costs. Mr Furlong has not find any case that an employee has been reinstated after being sacked because the employee’s complaints against workplace illegalities. On my website, on page case.html, dozens cases are listed. In those cases workers were not only told that they were stupid to consider they had rights to claim unlawful dismissals but also ordered them to pay the employers’ costs.

Mr Furlong mentioned ‘workplace occupational health and safety laws are administered by State and Territory Government. He as a senior lawyer should know the commonwealth law prevails over the state law under s 109 of the Constitution. He mentioned state governments have right to indict employers’ offenses, but unfortunately that is not the employee’s right to claim unlawful dismissal and reinstatement.

5. Summary

Mr Furlong did not answer the questions below raised in my email of 3 June:
‘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 when workers are retaliated and dismissed due to their complaints against workplace illegalities?
c. why Fair Work Australia denies the existence of the law of unlawful dismissal (Mr Furlong wrote worker could still claim unlawful dismissal in national system. On Fair Work Ombudsman’s website, it has unlawful termination. When I called the Ombudsman on 13 13 94 on 11 October 2010, I was told I had to call Fair Work Australian for unlawful dismissal on 1300 799 675. Michelle of Fair Work Australian told me on 11 October that a worker in national system cannot claim unlawful dismissal. I looked at the webpage,, which says in national system a worker cannot claim unlawful dismissal. My answer for this question is that Fair Work Australia knows “‘the unlawful termination’ door is shut’, it should not knowingly send workers to the Court to make workers be ordered to pay the employers’ costs’)?
d. whether the government believes that the employer’s authority is more important than the laws and regulations?’

Mr Furlong found to the effect that He’s case law is wrong; therefore, the government uses workplace right to address the issue. He wrote: ‘paragraph 1370, that unlike previous provisions, “it is not a prerequisite for the protection to apply that the employee has ‘recourse to a competent administrative authority’. It would include situations where an employee makes an inquiry or complaint to his or her employer.”’ Zhang’s case law is even worse but he did not have the authority to say whether Zhang’s case law is wrong or put limitation on Fair Work Act.

In additional to the unanswered question raised in previous email, why the government cannot eliminate the limitations put on s. 772(1)(e) of the Fair Work Act by He’s and Zhang’s case laws in order to enable the government to fulfill its obligation under the Termination of Employment Convention 1982 and Australian Constitution?

I appreciate Mr Furlong’s effort to clarify the matter. Obviously, Mr Furlong has no authority to answer the above questions as he outlined at the beginning of his letter: the incoming government has the freedom to take actions. Please let proper person answer these questions and take actions. Now it is clearer than before that the question is whether the government has the political will to solve the problems caused by both He’s and Zhang’s case laws and to make a policy decision.

My email of 3 June 2010 to the then Minister for Employment and Workplace Relations and Mr Furlong’s response dated 2 August are attached.

1. My email of 3 June 2010 to the then Minister for Employment and Workplace Relations
2. Mr Furlong’s response dated 2 August