Red Rag

In today’s Crikey email, Christian Kerr pointed to an interesting exchange with John Howard, in which interviewer Sarah Ferguson “refused to be put off by the usual Howard bluster and obfuscation”:

SARAH FERGUSON: You cited the Blair Athol case in Parliament the other day. Were there lessons from that case that were influential in the drafting of the legislation?

JOHN HOWARD: No, I just mentioned it in passing.

SARAH FERGUSON: I don’t believe you mention anything just in passing. You must have had a good reason for mentioning it.

JOHN HOWARD: I know why I mention things. You can assert a contrary view, but you’re asking me the context in which I used it, I’m giving you the answer.

SARAH FERGUSON: What was that context?

JOHN HOWARD: In a debate.

SARAH FERGUSON: You didn’t just pluck it out of the air.

JOHN HOWARD: I knew about it.

SARAH FERGUSON: So what is it about it you think is interesting?

JOHN HOWARD: It illustrated something.

SARAH FERGUSON: What was that?

JOHN HOWARD: It illustrated how, in certain circumstances, people can double dip, if they are paid a redundancy and then claim in some way that their redundancy has amounted to an unfair dismissal.

But as Ferguson suggested, the Blair Athol case is significant not because of any double-dipping, but because “a black list was drawn up of union members who were targeted for dismissal.” However, they fought the company for four years, and in August their unfair dismissal claim was finally upheld — but Rio Tinto’s lawyers, Freehills, have been seconded to draft the WorkChoices legislation. They’ll make sure their clients can get away with it next time.

The 151 Academics’ submission to the Senate inquiry explains that the relevant part of WorkChoices is not designed to prevent “double dipping” — it’s designed to shield unfair, anti-union employers from prosecution (pp 12-13):

Employees who are dismissed for ‘genuine operational reasons or reasons that include genuine operational reasons’ will be prohibited from seeking a remedy because it is also harsh, unjust or unreasonable. ‘Operational reasons’ are defined as including ‘economic, technological, structural or similar’ reasons. If even one of the reasons for the dismissal is a ‘genuine operational reason’, the AIRC must find that an application pursuant to the harsh, unjust and unreasonable provisions is invalid. … For example, certain employees may be victimised and targeted for dismissal in a redundancy process. Such employees should not be denied access to unfair dismissal remedies. Moreover, ‘economic’ and ‘structural’ factors potentially go well beyond instances of genuine redundancy exemplified in the explanatory memorandum. For example, if an employer decided to replace award-covered workers with cheaper employees on the minimum standards, this would provide an economic advantage to the employer and could therefore constitute a genuine ‘economic’ reason to exclude any unfair dismissal claim under the Bill.

The Minister has explained that this provision is aimed at preventing retrenched workers from ‘double-dipping’ by obtaining redundancy pay on top of compensation for unfair dismissal. However, there is nothing in that provision of the Bill that refers to redundancy payments. If this were the purpose, then the legislation would only need to require that the Commission deduct redundancy payments from the maximum amount of compensation a worker could receive. In reality, such a provision would be unnecessary, since the AIRC already takes redundancy payments into account in determining compensation, as one would expect the parties to do in reaching a settlement. In practice, this provision would enable a worker to be dismissed in ‘harsh, unjust and unreasonable’ circumstances, by a firm of any size, if the firm could successfully argue that it was partly for ‘operational reasons’. The worker would be unable to lodge a complaint about unfair dismissal.

The Prime Minister has told Parliament that this provision is to ‘clarify’ the situation that arose when sixteen workers at the Blair Athol coalmine in Queensland were sacked. In 2001 the AIRC found that Blair Athol management had created a ‘black list’ of union members who were ‘singled out for termination’ via a redundancy process. Mine management ‘went about demeaning’ those targeted for termination; for example they were ‘allocated menial tasks such as chipping weeds with a hoe rather than using a weedicide as was normally the practice … and painting tyres with a broom as opposed to spray painting which was the normal practice’. The ‘strategy’, which according to the AIRC ‘could be likened to ‘blood sport’’, was ‘designed to force (unionists) to accept the redundancy package’. Management introduced a performance appraisal scheme which had ‘no procedural fairness or due process’ and in which a group of unionists were denied ‘opportunities to perform work which would have provided an opportunity to have improved their…rating’. It was then used as the basis for dismissing the 16 workers. Only a ‘whistle blower’ witness revealed the existence of the ‘black list’. The situation experienced by the workers is detailed in research analysis. This case was pursued by the workers under the unfair dismissal provisions. After numerous cases, appeals, further appeals and delays, most of the workers were reinstated and the case was settled with the unanimous approval of the workers seven years after the dismissals. Under the Bill, these workers would have been unable to pursue their claim.

Although the Blair Athol case identified weaknesses with the law, these had nothing to do with ‘double dipping’; rather, they were about the difficulties the blacklisted workers faced in obtaining reinstatement in a timely manner: justice delayed is justice denied. The proposed inclusion of these provisions would only worsen the inequity that occurred for several years at Blair Athol, and create opportunities for other unscrupulous employers to use this provision to contrive arrangements to dismiss workers for ‘economic’ reasons.

This is what WorkChoices is about. It’s a scheme cooked up by big business, and drafted by big business lawyers, to give them the right to sack union members or anyone else who speaks up about unfair wages or unsafe conditions.