From Hercules' Foot

No rights of entry?

2009-03-05T22:24:00.001+10:00

Did Peter Costello really just say on Q and A that his IR policy would have no rights of entry?...

Fair Work Bill Senate Report Released!

2009-02-27T15:20:00.001+10:00

The Senate Committee report into the Fair Work Bill has been released, more to follow...

First impressions: (these are very cursory) - the Labor Senators have been fairly conservative in their recommendations, making just 13. I'm glad to see that they have recommended an increase in the time limit to lodge an unfair dismissal claim (from just 7 days to 14). 14 days is still pretty piss-weak but better than 7. The Greens (in a minority report) have made a more reasonable recommendation that it be increased to 21 days.

No recommendation has been made by the majority over access to non-union records (in relation to right of entry investigations). The Senators have rejected claims made in a number of submissions that this would breach the privacy of some employees. I'm fairly convinced that the concerns were over-blown by union groups, but I thought that Labor might throw a recommendation in here to appease these concerns... obviously they thought this was unnecessary!

In transfer of business, the majority have recommended that the probationary period (for old employees transferred over to the new employer) should not be required to be served again. I think this is a welcome move.

Here is a cut and paste of the recommendations from the majority report:

Recommendation 1
The committee majority recommends that the government gives careful consideration to any recommendations of the inquiry into better support for carers being conducted by the House Standing Committee on Family, Community, Housing and Youth on additional measures that should be taken within the workplace relations framework to assist carers.

· In particular, the government should carefully consider any recommendation that the NES be amended to extend the right to request flexible working arrangements for employees caring for a child with a disability and carers of adults in need of care.
· The committee majority also considers that employers and employees should be able to provide in their enterprise agreement that the agreement’s dispute resolution clause can deal with disputes over the right to request flexible working arrangements.

· The committee majority recommends that FWA conduct regular and targeted investigations and analysis to ensure that individual flexibility arrangements are being used in accordance with the Act and are being used to provide genuine individual flexibility.

· The committee majority recommends that the period to access a proposed agreement be extended to 14 days but, where bargaining agents agree, the period be reduced to seven days.

Recommendation 2
The committee majority recommends that the Fair Work Information
Statement include information on individual flexibility agreements (what they are, employee rights and where to go for independent advice), the rights to unfair dismissal claims and how employees may undertake that process. It should also be made available in community languages to assist employees from non-English speaking backgrounds.

Recommendation 3
The committee majority recommends that FWA conduct regular and targeted investigations and analysis to ensure that individual flexibility arrangements are being used in accordance with the Act and are being used to provide genuine individual flexibility.

Recommendation 4
The committee majority recommends that the period to access a proposed agreement be extended to 14 days but, where bargaining agents agree, the period be reduced to seven days.

Recommendation 5
The committee recommends the area of confidential or commercially sensitive information as an area for future review on how good faith bargaining provisions are working.

Recommendation 6
The committee recommends that the bill be amended to provide for a fourteen day time limit within which time appeals against unfair dismissals must be lodged with Fair Work Australia.

Recommendation 7
The committee majority recommends that the Fair Dismissal Code be amended to provide that employers be required to provide a warning in writing, taking into consideration the needs of employees from a non-English speaking background.

Recommendation 8
The committee majority recommends that it would be desirable to ensure consistency of the drafting between these two provisions by providing that where industrial action threatens harm, the threat should be imminent, and the harm to the third party should be economic harm.

Recommendation 9
The committee majority recommends that Community Legal Centres be exempt from being required to seek leave to appear before FWA.

Recommendation 10
The committee majority recommends that a probationary period after a transfer of business should not be required to recommence and they should be treated as existing employees.
Recommendation 11

The committee majority recommends the government accepts the suggestions in this chapter regarding outworkers and implements them as amendments to ensure appropriate protections are in place that recognise the special vulnerability of these workers.

Recommendation 12
The committee majority recommends that the government give careful consideration to the issues raised in the submissions to the committee concerning the coasting trade and has regard to the desirability of ensuring the provision of a decent safety net of employment conditions to workers engaged in that trade.

Recommendation 13
The committee majority recommends that the bill be passed without delay.

Human Nature at its Worst

2009-02-25T21:12:00.003+10:00

I don't see any good that can come of a custodial sentence for former Justice Einfeld. The glee with which the media and public have jumped upon this man is really quite sickening. There seems to be a part of human nature that enjoys seeing high profile, successful individuals have their lives come apart in full public view.

Justice Einfeld certainly acted like a fool, but the man deserves better than to be hounded by the press and public baying for his blood. I'm not advocating a separate rule for those with a high profile, but I don't see any purpose that a jail term can serve in this situation, other than to appease those members of the public wanting to see this man humiliated further to the greatest extreme. Einfeld is certainly no threat to society, and a jail term in this case would be unlikely to serve as a deterrent. Do you have any burning desire to commit perjury after hearing about this case? Furthermore, the man is suffering from severe depression (unsurprisingly) and prostate cancer and is reportedly at risk of suicide. This is 'tall poppy syndrome' gone crazy.

Juries update

2009-02-24T12:22:00.001+10:00

After writing about the reliability of juries last night, BOOYAH! R v Thaiday [2009] QCA 027. In this Court of Appeal decision, the trial juries decision was overturned due to a lack of evidence, and the real possibility that an innocent person was imprisoned.

Briefly, the facts were that the complainant (10 years old at the time) claimed to have been sexually abused in the mid 1980's (25 years ago). There was no evidence at all except that from the complainant, and the complainants evidence was contradicted by a family member, to whome the complainant had first reported the incident to. Beyond that, the trial Judge, in several lengthy directions given to the jury, basically told them there was not enough evidence to convict.

Despite all this, the jury convicted.

Justices Keane and Muir and Lyons, in a joint decision, quashed the conviction recorded at first instance.

Does this change my opinion on jury trials? (i.e. that they are better than a judge only trial) - No. While in this situation the jury clearly put too much weight on the evidence of the complainant (dismissing all contradictory evidence and not taking account of the lack of supporting evidence), this is an isolated situation. I still feel that juries generally have a solid grasp of their role and responsibilities and go about them in a serious, mature and thoughtful way.

Furthermore, this case shows that when they do not - it is not the end of the road for the convicted.

Paid maternity leave to be delayed?

2009-02-24T08:59:00.000+10:00

It looks like PML may be delayed till 2010. This makes political sense: the delay allows it to be introduced just prior to an election, and there is a perfect excuse for delay (no money in the budget and not wanting to increase costs for business under the current economic environment).

Rudd has already made a commitment to implementing PML, but made no commitment as to when it would be implemented.

The final report of the Productivity Commission Inquiry may be released on Friday, or later next week. I have a personal and professional interest in this area so will be sure to analyse the report in full, I dont really expect it to really deviate from the Draft Report by any considerable margin though.

The Senate is also due to report this Friday on their inquiry into the Fair Work Bill inquiry, which is more squarely where my interests lie, so this could be a busy week!

Dennis Ferguson, No Jury

2009-02-23T18:45:00.001+10:00

Photo from publik16 - flickr

Today District Court Judge David Robin allowed an application by Ferguson's defence team for a non-jury trial, reported here in the Courier Mail.

This application was always likely to be successful, given the public outcry after Ferguson was identified, living in Carbrook - south of Brisbane. Carbrook residents were involved in some quite medieval behaviour, burning effigies and baying for blood - all given liberal media coverage.

This case has quite a history, all charges being discharged by Justice Botting (who felt that Ferguson had no chance of a fair trial), only to be reinstated on appeal. Now it looks like a trial will go ahead, albeit without the presence of a jury.

Ferguson is not lovable character to say the least, he looks like a pervert and has hit out at reporters who have hounded him in the past. Beat ups on shows like today/tonight have only made things worse. This has not helped him in the trial by public, but a court trial is an entirely different thing.

I am unsure whether Ferguson is likely to receive a fairer trial by sole judge than he would with a jury of his peers. My experience with juries, while limited, is that they do take their role incredibly seriously, and would be unlikely to be swayed by some sensationalist journalism that has surrounded Ferguson's existence. The 12 heads in a jury have a magnitude of experience and knowledge that far exceeds the greatest judge, and it is incredibly rare that decisions by jury are overturned.

Juries are also anonymous, and do not have to worry about political and career repercussions for their decisions. A sole judge that sets Ferguson free, should that happen, would be roundly condemned by trash media and rabid members of the public. I think this is one valid reason why the decision should be taken away from a single member of the judiciary.

I am a strong believer in juries, and when screened properly and appropriately filtered by counsel, they are a vital core of our legal system. I'm quite concerned that the decision today could lead to more, not less, injustice in the Ferguson saga.

Queensland Election Thoughts

2009-02-23T12:34:00.000+10:00

Key election issues, and who I think has the advantage:

Education: I think this will be one of the key issues of the election. After Queensland’s poor results in the national tests Anna Bligh has been throwing money at this from infrastructure and training directions. The federal move towards a national curriculum will focus campaigning on teachers, class sizes and infrastructure.

I think the LNP has a chance here; education has been an issue for a long time and has not really improved greatly over that time. The fact that Anna Bligh was Education Minister while many of the questionable decisions were made may help the Borg. However, the he needs policies, and that is his weak point. I think this issue is in the balance.

Health: Many cock-ups from Qld Health over the last term (Nurses being abused, long waiting lists, the Patel hangover, not enough beds etc. etc.) will not help Labor here. However health, like education, is generally seen as a Labor strong-point. The Borg will need some good looking policies that make sense and don’t cost the earth to trump Labor on this topic (so far, his policy page on health contains no policies at all).

The building resentment against a Labor Government that has failed to really ‘take the bull by the horns’ could assist him, but if there are no high profile disgraces I think Labor might just take this.

Environment: This will be an issue that can divide the LNP, and I think that Labor will jump on it as an exploitable opportunity. There have been no huge Labor blunders that I can think of in this portfolio (maybe the Dams, but these are equally a media beat-up). I expect some Labor announcements in this area, partly to keep the Greens happy, and partly to stretch the Borg’s leadership skills. I don’t know how the LNP can play this one well to keep city folk and country folk on side. Labor’s key exploitation issue.

Employment & Industrial Relations: On the industrial relations side this will be a non-issue, as the Fed’s have largely taken over this issue. Employment and job growth will likely be a huge issue though. Labor has acted quite strongly since the start of the GFC with the ‘Jobs Squad’ and other policies to assist workers and employers through the downturn. The Borg has found it hard to gain any traction on this issue, his one big policy being to cut payroll tax. This will go down well with business, but probably won’t win too many new voters over. I expect Labor will remain very active on this issue – as it will be an issue affecting many Queenslanders directly. With mining areas going arse-up, this could well be a way to win votes in rural towns. If Borg wins the election, he will have to pull a rabbit out on this issue. Otherwise, this is all going to Labor.

Law and Order: I don’t see this being big at the moment. Crime rates are not increasing, despite what you may thing reading the Courier! The only high profile criminal topic at the moment is Patel – and this brings more of a spotlight on health than law and order. This might just be a local campaigning point; I don’t expect any large State-wide announcements though.

Other Factors: So, if you are still with me, you might think things are all going towards Labor – and that is more or less how I think. The weak areas for Labor are self-inflicted, and not due to any super political or policy decisions by the LNP. There are some other factors though, that will assist the LNP:

9 outgoing Labor members: new blood can be good, but probably not this much just before the election. This can be spun a few ways, it could be a ‘fresh new Labor’ or a ‘MPs flee sinking ship’. It could be enough to swing a few seats to the LNP; I’ll leave the predictions to someone else though.
Long Labor Incumbency: This could hurt Labor more than any other issue in isolation. Queensland has been booming, Labor has had unprecedented amounts of money to spend, yet we don’t have a world class health system or a world class education system. Now that things aren’t looking so good – people may blame Labor for ‘wasting the good times’. If I were an LNP advisor, I’d be pushing this one in campaign ads – but they don’t want to rely on it too much.
Experience: this will be Labor's rebuttal against the argument that they have been in for too long. Not only does the LNP have very limited experience, but they have proven to be irrational and erratic in opposition. If they can't do opposition properly after more than 10 years, why would anyone give them a chance at power? This will probably feature in many of the ALP's attack ads.

Labor will want a fairly smooth ride to the election, and will be happy to throw bombs at the LNP that could divide the ranks. The LNP however, will need to pull their finger out and bring some big policies to the table. I don’t think resentment will be enough for them to get across the line, though I’m sure they will try to exploit it as much as possible.

It will also be interesting to see whether the Borg continues his well trodden path to electoral demise, as brilliantly explored by possum.

This could be a no holds barred campaign, I expect some nasty ads to be aired. Lets get ready to rumble!!!

UPDATE: It is 'leadership, stability, strength and experience' that is pushed in Anna's media release.

Double-Headed Main Events

2009-02-22T08:56:00.000+10:00

An all too rare double header main event today (Sat night US time) with Miguel Cotto v Michael Jennings and Kelly Pavlik v Marco Antonio Rubio. Furthermore, what is interesting is that both fights will take place at different places, on different cards!

I like this development, recently HBO and other boxing ppv providers have been happy to lump us with poor quality undercards because 'people only care about the main event'. When I fork out $30+ to watch an event, however, I want more than just the main event. If they put two main events, from two separate cards on the same PPV bill this can only be good. It works on two levels; one - we, the purchaser get more bang for our buck, two - the promoters do not have to compete against the other card for PPV sells.

Hopefully this will take off, and is not just a product of poor economic conditions and poor PPV sells... we shall see.

So the down side?

Both Cotto and Pavlik should walk over the opposition. The odds are heavily stacked against Jennings and Rubio, and everyone expects them to go down against their better known opponents.

Just because Cotto and Pavlik are coming off losses (with Cotto's loss to the cheating Margarito) they shouldn't have to drop down to 2nd rate opponents before taking on a top 10 boxer again. It is now down to how impressive they look in their wins, not whether they will... bit disappointing really!

First Post!

2009-02-20T12:25:00.000+10:00

A new blog for me, hopefully something I can maintain a little better than previous efforts.

In a bid to keep it going I'm going to mix it up a little, including some industrial relations/employment law opinions and commentary as well as some personal posts on things that interest me: photography, cycling and music to name a few.

I'll commemorate this blog with a stupid idea, making a prediction for the Qld election date: 4 April 2009. Why? I can't really say as I have some 'inside info' but it will be called soon, I have little doubt about that. I guess some public events that lead me to believe it is coming are:

Bligh's newly launched website,
a spate of recent retirements from sitting members,
timing perfect for a pre-holiday election (just before Easter)

So, there you have it.

UPDATE: Well it turns out I wasn't right, but wasn't far wrong either - March 21 it is!