Alternative Law Journal
The ongoing uncertainty regarding the definition of a 'casual' worker under the federal Workplace Relations Act 1996 will benefit from a recent Full Bench of the Australian Industrial Relations Commission (AIRC) decision in Yasmin Cetin v Ripon Pty Ltd t/as Parkview Hotel (PR938639).
The case concerned a waitress initially employed to work at a NSW hotel bar as a casual with fluctuating hours. She was subsequently transferred to work at the hotel's restaurant, with regular hours up to four days per week. She was paid a causal loading in lieu of sick leave, annual leave and public holidays and was obliged to give notice if she could not work. After eight months her employment was terminated and she sought unfair dismissal relief in the AIRC.
The employer objected to the application and moved that it should be dismissed for want of jurisdiction. The employer argued that Ms Cetin was a casual employee engaged for fewer than 12 months and therefore excluded by the Workplace Relations Regulations from bringing an unfair dismissal claim.
At first instance, Commissioner Harrison relied on the case of Bluesuits Pty Ltd t/as Toongabbie Hotel v Graham and found for the employer. He took the view that although the applicant worked fixed and regular shifts, this was not inconsistent with the casual provisions of the Award and that the overall characteristics of the applicant's employment were indicative of casual employment.
However, the applicant successfully appealed Commissioner Harrison's decision. On 25 September 2003 the Full Bench of the AIRC found that given amendments to the Regulations since the Bluesuits case and the Full Court's decision in Hamzy v Tricon International Restaurants the reasoning in Bluesuits is no longer applicable. Instead, the AIRC preferred to rely on the international Convention Concerning Termination of Employment at the Initiative of the Employer and the case of Reed v Blue Line Cruises in deter mining whether an employee is a casual.
Cetin s case opens the door for unfair dismissal claims by employees whose employment has been regular and systematic and who have a reasonable expectation of ongoing work, even if they have been employed for fewer than 12 months and the employer classified them as a casual. As the Full Bench noted 'the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck'.
The Kingsford Legal Centre, with the support of student volunteers and a pro bono barrister, ran this case entirely on a pro bono basis. The decision is available on the AIRC website: <www.airc.gov.au>.
It is notable that the new Common wealth Fair Termination Bill comes into force in November 2003. The impact of this new law is not yet clear but it could be seen as an attempt to nullify this and similar rulings.
There has been a shift in the presumption in favour of bail for a range of offences in NSW as a result of amend ments to the Bail Act. With the most recent amendments coming into force on 23 August 2003, the golden thread of the presumption of innocence is beginning to acquire a taint of verdigris.
The Bail Amendment Act 2003 ('the amending Act') establishes a range of offences for which exceptional circum stances must exist before a court can grant bail. Exceptional circumstances must exist where the defendant is charged with murder or manslaughter, or a serious personal violence offence where the defendant is a repeat offender.
However what awaits in the wings is perhaps of even greater concern. Part 3 of Schedule 1 of the amending Act would create a new s 25A of the Bail Act. That Part has not yet come into force, although it has received royal assent. It provides for automatic stays of decisions granting bail on charges of 'serious offences' (defined as offences punishable by life imprisonment, or offences under Part 3 of the Crimes Act 1900 involving intercourse with some one under 16). Such stays will occur if a police officer or lawyer representing the Crown immediately informs the judge or magistrate granting bail that a Supreme Court review of their bail decision will be made, provided the DPP's office has authorised a bid for review. The stay is to last a maximum of three business days.
Should this section come into force, it will allow a police officer to enforce a stay of a bail decision of a magistrate. It would appear that during this three-day period the defendant may have no recourse to the courts to have their custody reviewed.
This raises serious questions about the validity of the section. On constitutional grounds, it may breach the separation of powers. If this were the case then the section may be struck down in accordance with the principles in Kable v The DPP.
Arguments about the separation of powers would need to grapple with the fact that traditionally, the power to grant or refuse bail is an act of executive power, as the comments of Deane, Brennan, and Dawson JJ in Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs suggest:
Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the 'ancient common law' jurisdiction, 'be fore and since the conquest', to order that a person committed to prison while awaiting trial be admitted to bail. [citing Blackstone]
However the proposed section may be invalid for other reasons. For instance, such empowerment of police officers may result in the creation of an atmosphere in court where magistrates' independence from executive action is compromised. Some light may be shed on this point when the High Court determines NAALAS v Bradley, which concerns the independence of the Chief Magistrate of the Northern Territory.
Whatever the ultimate legality of the proposed amendment, it certainly constitutes interference in the business of the courts, as it supplants, albeit temporarily, the decision of a magistrate with that of a police prosecutor. Further, it disturbs the natural hierarchy of the courts, and creates the possibility that the power could be abused, as there is no obligation on a police prosecutor exercising the power to provide any reasons for the decision.
NT gaols: human warehouses?
Northern Territory Crime and Justice Statistics for the June 2003 quarter have revealed a downward trend in crime and a drop in house break-ins. This is a major political coup for the NT. The Attorney General responded with a media release to highlight this aspect of the statistics.
However, he did not highlight the bad news: an upward trend in incarceration. In the long term there has been a significant increase in the prison population from 267 in 1983 to 756 in 2003, far in excess of population growth.
The June statistics show that prison numbers have increased by 14% in the last year. Of particular concern is the 34% increase in the Indigenous prison population compared to the same quarter last year.
If that increase is sustained, prison resources will remain at critical levels. Media reports this year have high lighted problems in the prisons, including riots, extensive lockdowns, industrial disputes and excessive over time. Ifthe prison population continues to increase, these problems will only become worse.
Concerns have been expressed that the prison system is not fulfilling its responsibility to ensure that prisoners are effectively reintegrated into society when released.
With such a dramatic increase in incarceration and drop in crime, one may well ask: Are NT gaols becoming human warehouses?
Against all the odds, on 28 August the Legislative Council passed the Relationships Ac2003.It was supported by government embers and independents Sue Smith, Kerry Finch and Greg Hall.
Leading up to the passage of the Bill, there was substantial lobbying by gay rights groups and church groups. The Australian Christian Lobby even used television advertisements opposing the reforms. The lobby's zeal was criticised by a number of Legislative Councillors for raising irrelevant issues, and using offensive materials and even threatening tactics.
While some parliamentary opposition to the Bill was expected, Jim Wilkinson's and Ivan Dean's lack of support was surprising, given the former's previous attempts to achieve gay law reform through the Upper House, and the latter's earlier role as the GLBT police liaison officer in Launceston. Both Sue Smith and Greg Hall reportedly polled their (somewhat conservative) communities about the Bill and found unexpectedly high support for the legal recognition of same-sex relationships.
However, the independent members' support was dependent on an amendment to the Bill proposed by Sue Smith, ultimately agreed to by the Legislative Council. The amendment deleted a provision giving presumptive parenthood to the female partner of a woman who has a child as a result of a fertilisation procedure. The section was problematic for a number of reasons. Many Councillors seemed unaware that lesbians are able to access IVF in Tasmania. There were also suggestions that, with concern over general placement adoption abated (since it was left out of the Bill as introduced to parliament), some Councillors felt it necessary to make a stand over the next most controversial issue. The issue of presumptive parenthood has been referred to the Parliamentary Community Development Committee.
Despite the omission of the general adoption provisions and the presumptive parenthood section, Attorney General Judy Jackson claimed that the legislation was a significant step for ward, and that 'legitimacy for some is better than legitimacy for none.' She also stated that 'the Parliament has spoken loudly and clearly today that the New Tasmania is a place of compassion'. Some who heard both sides of the debate from the public gallery may not entirely agree.
However, the legislation undoubtedly gives Tasmania's same-sex couples and their children the second most comprehensive set of rights in Australia, behind Western Australia. Same-sex couples are given more or less identical rights as de facto hetero sexual couples, including step-parent adoption. Both these types of relation ships are now termed 'significant relationships'. This equality extends to over 100 state laws: from state superannuation, through next-of-kin, medical treatment, state taxes, statutory compensation schemes and license transfer fees. As of January 2004, parties to significant relationships can register their relationship at the Office of Births, Deaths and Marriages.
Less than two weeks after the legislation passed, local media was tipping Judy Jackson to announce her retirement as a result of Cabinet pressure. Two days later she announced another controversial reform, to overhaul legal profession regulation.
The Tasmanian Law Society has, for the past 132 years, been responsible for issuing practising certificates, monitoring standards and handling complaints against its now 430 members. Its reputation has suffered recently after its role in the multi-million dollar collapse of several solicitor-managed mortgage funds. A new legal profession board, proposed by the Attorney General, will be government-appointed and consist of four lawyers and two members of the public. The Law Society strongly opposes losing its regulatory powers and claims most of the proposed reform is unnecessary and costly.
In August Premier Jim Bacon announced the 'left field' appointment of Richard Butler as the new Governor of Tasmania. Mr Butler was a chief United Nations weapons inspector in Iraq and has been a strong critic of the federal government. The 61-year-old promptly declared that his days of criticizing government policies had ended.
Mr Butler also had to quickly revise his staunch republican rhetoric. In September 1999, he told the National Press Club that having the Queen as Head of State was 'hideously damaging' to the way Australians perceived themselves. Mr Butler apparently didn't see the irony in his new role, claiming that he was talking about the psychology of the monarchy rather than the political pro cess. Much to monarchists' delight he has also happily agreed to take the oath of allegiance to the Queen.
Then, just a few days after local media reported that in keeping with Mr Butler's commitment to be modem he and his partner Jennifer Gray would be the first unmarried couple to occupy Government House, Premier Bacon revealed the couple would be married before the swearing-in ceremony. To much amusement, Mr Bacon drolly told parliament that 'some people were a touch concerned about the Governor's marital status'.
Mr Butler will replace Governor Sir Guy Green from November 3.
Samantha Hardy teaches law at the University of Tasmania.
Perhaps the least said about the jailing of former MHR and One Nation Party founder Pauline Hanson the better. Acres of
newsprint greeted her conviction, on three counts of fraud arising from the party's improper registration in Queensland. Hanson and fellow party apparatchik, David Ettridge, were found to have used a list of members of the Pauline Hanson Supporters' Movement as if it were a list of party members. The greatest fraud was on those party faithful who thought they were joining a democratically structured organisation.
The conviction and three-year sentence are subject to an appeal, touted for November. An appeal court has already cast some doubts on the conviction. Moreover the sentence was roundly criticised as excessive. The best that can be said for it is that significant term was warranted to deter electoral fraud, especially in a case involving dishonesty by a serving politician on the electoral authorities., Hanson was accused of a lack of contrition -not surprising as she continues to protest her innocence. Indeed within weeks her son wrote, recorded and released a song on CD titled Innocence. Curiously her defence tendered no counter-evidence in either civil or criminal trials.
Ironies abound. Hansonites always stood for tough sentences, especially for abuses of power. And for the first time in years, a sympathetic media and public alike has become concerned about prison conditions and protocols. Perhaps, as in one of the late Johnny Cash's songs, Hanson may be reformed by her prison experience. Indigenous women sharing the confines of the Brisbane Women's Prison might well remember Ms Hanson's pledge as an MHR that she would not represent Aboriginal people.
Two stories reveal the sensitive side of the Queensland judiciary.
Colin Lovitt QC was convicted of contempt for exclaiming that a magistrate was a 'complete cretin' to journalists assembled in a courtroom during a high profile summary trial. The same day, after a favourable ruling during the hearing, Lovitt had also said 'I take it back. He's not a complete cretin.' The magistrate, on hearing the remarks in the news, disqualified himself, necessitating a new trial.
Lovitt, a Victorian, has form for 'in temperate criticisms' of WA courts. In convicting him, Justice Chesterman said a prison term was warranted but the AG only asked for a fine. Curiously, Chesterman J then imposed a fine of just $10,000, a quarter of what he said was ideal, because Lovitt's income of -$230,000 pa was 'low by industry standards'. Low-income earners eagerly await the flow-on of this '4% of income equals a fair fine' metric.
Simultaneously, President Koppenol of the recently established Land and Resources Tribunal went public with complaints about facilities in the three person Tribunal's new quarters. (These quarters are part of a plan to bring various tribunals into the one building).
Koppenol insisted on ensuite toilets in chambers, and larger car parks and offices, in accordance with his Supreme Court judge status. He even threatened the public works department with judicial review action in that Court.
The Minister assured him Tribunal accommodation would be neither 'grass huts' nor a 'palace'. The Opposition leader was blunter, accusing Koppenol of acting like the 'Maharajah of Queen Street' whilst Supreme and District Court facilities are decaying. Koppenol subsequently agreed to abide by a Solicitor-General compromise.
The new Chief Magistrate will be local barrister, Marshall Irwin. Irwin has considerable administrative and criminal law experience, the latter bolstered by senior service with the Fitzgerald Inquiry, NCA, DPP and CJC. He replaces the hapless Di Fingleton, whose jailing was chronicled in this column.
As reported here (Dec 2002), the QLRC is undertaking a review of over 100 legislative provisions derogating from the privilege against self-incrimination. A Discussion Paper, available via <www.qlrc.qld.gov.au> or 07 3247 4544, welcomes submissions by 7 November.
Anyone who has ever worked in a law firm, large or small, will know just how much paper is used each day, as documents are constantly churned through photocopiers and printers. Despite considerable technological advances, law firms continue to be massive consumers of paper. Lawyers For Forests (LFF), a non-politically aligned association of legal professionals working to promote the conservation and better management of Victoria's native forests, has decided it is time for law firms to cut back on the waste and embrace a clean and green office environment.
The group spent 12 months developing 'Becoming Forest-Friendly - An Eco-Kit for Law Firms', attracting formal support from The Wilderness Society and employing professional design through a Victoria Law Foundation grant. The Kit draws together useful information from a range of sources to provide a practical, step-by-step guide to help law firms (and other offices) reduce their impact on the environment, and especially our remaining native forests.
LFF claims that by implementing the suggestions contained in the Eco-Kit law firms will both save money and demonstrate excellent corporate citizenship.
The Kit examines and makes recommendations about issues such as:
• what kind of paper to use (and not use)
• how to reduce consumption of re sources such as paper, electricity and water
• office fit-outs
• buying recycled products
• waste minimisation through recycling and conservation
• superannuation and ethical investing.
In making firms more aware of environmental sustainability, LFF also has the support of the Young Lawyers - Section of the Law Institute of Victoria. LFF seeks lawyers or other staff to volunteer to be their firm's contact point to help implement the Kit's recommendations
The Kit was launched at the Law Institute of Victoria on 22 August 2003. A free copy has been posted to most of Victoria's Top 100 law firms as well as to the Presidents of the Suburban and Country Law Associations.
It can be downloaded at <www.lawyersforforests.asn.au>.
In the continuing (probably misguided) efforts to coax rapacious yet risk-averse insurance companies back into the market so that sporting clubs, community organisations and the like can obtain public liability coverage, the Victorian Government has enacted its latest rights removing legislation-the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003.
Drafted and introduced to parliament within about a week and a half, the Bill distinguished itself by prompting the most extensive and expensive negative advertising campaign ever launched by the normally Labor-supporting plaintiff law firms. The campaign has been larger than that opposing Kennett's attack on injured workers' common law rights. Anti-government sentiments in double-page newspaper spreads, TV commercials and massive billboards have been accompanied by threats to with draw lucrative political donations made to the Labor Party by some of those firms.
It may be tempting to dismiss the campaign as self-interest on the part of fat-cat lawyers, fearful of losing a large cash cow. But the legislation will undoubtedly strip the rights of injured people in favour of insurance company profits, without any guarantee that premiums will fall or new insurers will enter the market. Unfortunately, following the Ipp report, similar policies are being adopted Australia-wide.
The Victorian Act establishes prohibitive thresholds for damages for non-economic loss following an injury, whether the claim is in negligence or contract (in any event, rights implied into contracts for recreational services have also been severely curtailed). While not 'doing a New Zealand' and establishing a totally administrative scheme, the Act effectively adopts many of the worst elements (for injured workers) of the Victorian workers compensation scheme -examinations by Medical Panels, assessments using the American Medical Association's (AMA) guidelines and restrictions on pain and suffering damages. Regarding the latter, a physically injured person will have to prove a permanent impairment of greater than 5% of the total body, or 10% if the injury is psychiatric. Secondary psychological conditions are excluded, even though these are quite common following serious physical injuries. And multiple injuries are combined and hence downgraded following AMA guidelines.
The Act also significantly limits damages for 'gratuitous' attendant care and imposes proportionate liability on claims for economic loss or damage to property. Further, it amends the Limitation of Actions Act 1958 to reduce the standard limitations period for most actions for death or personal injury (including under s 9 of the Fair Trading Act 1999) from six years to just three years from the date the cause of action is discoverable by the plaintiff. Unless quite limited exceptions are met, there is an absolute cut-off period of12 years, termed a 'long-stop limitation period', meaning an action must be commenced within 12 years from the defendant's fault.
Regardless of the effect on premiums, the real effect of the Act will be to exacerbate the position of many injured negligently and struggling without access to adequate compensation, ensuring they become a burden on the health care system. The large Labor law firms may have to look elsewhere when making their next political donations Green law firms, perhaps?
Che Cienfoegos is a Melbourne lawyer and member of Lawyers for Forests.