Wednesday, September 21, 2005

David Hicks - Defending the Indefensible

Poor Philip Ruddock has an unenviable job. This small “l” liberal lawyer is being forced to defend what has to be one of the most outrageous show-trials in modern legal history. And what makes things worse is that the accused is an Australian citizen.

The Howard Government cannot claim the most spotless record when it comes to protecting the interests of Australian citizens caught in a spot of legal bother overseas. There are numerous scandals involving Australians wrongfully detained and/or deported.

But the Hicks trial is particularly significant for a number of reasons. We have some details of the conditions at the Guantanamo Bay facility from former detainee Mamdouh Habib. Through his then lawyer, Stephen Hopper, Mr Habib was able to paint a coherent picture of conditions at the facility.

Those conditions included the regular and systematic use of torture, beatings other forms of physical and mental deprivation. The United States Military denies the allegations, as does the Australian government.

Yet both countries implicitly admit the charges by strenuously insisting that the Geneva Conventions against the torture of prisoners of war do not apply to Guantanamo detainees. Such insistence should be unnecessary if in fact no torture or mistreatment was taking place.

And it seems that a US military officer appointed to represent David Hicks is more concerned about the welfare of this Australian citizen than our Attorney General.

Major Michael Mori believes that the Hicks trial should be adjourned to allow the defence more time to prepare. Further, the entire process of military commissions is again the subject of appeal in the US Supreme Court.

But Mr Ruddock is insisting that the trial proceed and supports the lifting of the stay. Despite his legal background and training, Mr Ruddock sees no injustice in the process continuing.

Mr Ruddock is a former President of the NSW Young Liberal Movement, an organisation which until recently known for its small “l” liberal credentials. He also proudly wears an Amnesty International badge on his lapel when appearing in public functions.

How a lawyer and member of a respectable mainstream human rights organisation could support such show trials being used to try (and most likely convict) an Australian citizen is certainly beyond my understanding.

But Mr Ruddock is not the only Member of the Commonwealth Parliament to support the trials. Former lawyers John Howard and Peter Costello are also known to support the position of the United States Government.

The Federal Opposition has also been somewhat reluctant to be seen to be too supportive of the Hicks family. It seems that, at least in Labor and Liberal circles, Mr Hicks has already been pronounced guilty.

How a Parliament full of lawyers and law graduates cannot come together to defend an Australian citizen against being tried in such circumstances says a lot for the quality of lawyers that sit in our Parliaments. Perhaps there is some truth to the common joke amongst practitioners that all the failed lawyers seem to end up either in gaol or in Parliament.

Australian citizens and their families deserve better than to be treated like political guinea pigs. But in the current environment of near-hysteria, it seems all you have to do to deprive someone of rights is to label them a terror suspect.

The author is a Sydney lawyer who is completing his Masters in International Law at the Australian National University.

© Irfan Yusuf 2005

Saturday, September 17, 2005

804 Words of Wisdom

The War Report – Part 2

The federal government told lies to justify its war in Iraq. Is the government telling porky pies to push through its industrial agenda?

According to the Vice-President of the NSW Industrial Relations Commission, yes. In a speech to an IR conference at Sydney University, Justice Michael Walton said that the federal government’s IR plans were unfounded.

The comments were made around 3 weeks ago, and were reported in the Weekend Financial Review on 27-28 August 2005. They might seem like old news, but the message springs eternal.

The problem we have with the entire IR debate is that it has been hijacked by extremes. On the one hand, you have the unions trying to maintain every bit of the status quo. On the side, the only voices we ever hear are from the government and from employer unions.

Apart from a few squeaks from farmers against incorporation, we never seem to hear from employers who really count. The majority of employers do not belong to an employer union. And it is these employers who will be most affected by the changes.

Choice for workers is fantastic. But as the fiasco with superannuation choice is proving, it often comes at a high price. And usually it is smaller employers who pay the price.

There is absolutely no shred of evidence to show that smaller employers will fail to put on workers just because of unfair dismissal laws. Those in the big employer unions making this claim have obviously never bothered to consult with smaller employers on this matter.

But then again, members of big employer unions are too busy driving their competitors out of the markets. They are too busy testing the boundaries of Parts IV, IVA and V of the Trade Practices Act and driving our smaller competitors.

When owners of large shopping centres or massive retailers start pontificating for smaller business, it all sounds like a joke. Smaller shop-owners who are forced to sign leases making them account for profits to their landlords are hardly going to regard these same people as speaking with any integrity on such issues.

So what are the smaller businesses saying? And who is listening to them? What would they think if the existing state jurisdictions were replaced with one federal system? Would they agree to take on the added paperwork and red tape of incorporation just to be part of simplified industrial relations?

Anyone who thinks the battlelines of IR are clearly drawn must be kidding themselves. Business is not just worried about unfair dismissal. There is more to the business expansion equation than just the ability to sack people more easily.

In fact, most employers don’t hire people so that they can sack them. Arguing in this vein is like arguing that you get married to just get divorced more easily. It is a fallacious argument, and makes about as much economic sense as Das Kapital.

Moreover, the government has not thought through the legal difficulties of the whole arrangement. Personally, it is this aspect of IR reform that makes me very excited. I will have enormous amounts of work arising from small business people wishing to understand and comply with the new laws. I can quite legitimately tout for work from now.

“Are you ready for the new industrial laws? Do you understand your rights and responsibilities? For the cost of an arm and a leg, you can consult us about how the laws affect you. Give us a call today.”

Industrial lawyers will have plenty of work from the new changes. But their smaller clients will probably miss out on the expertise.

The government will probably respond with plenty of plain English guides to educate small business. But how small and concise can such booklets be when the new system will have to address a variety of matters as:

1. workers compensation?
2. occupational health & safety?
3. procedures for new workplace agreements?
4. which leave provisions go and which stay?
5. discrimination law changes?
6. changes in Commission procedures and roles?
7. unfair contract?
8. unfair dismissal and its exceptions?
9. the role of independent contractors?
10. exceptions and interpretation of the 100 employee cap for unfair dismissal exemptions?

Yep, sounds as simple as unreal numbers.

Industrial relations law as it stands is very complex. But unless the federal government is prepared to come clean with its detail on the new laws, business has every right to presume that the IR reform proposals will add even more complexity, red tape and a bigger compliance and legal bill.

On behalf of my colleagues, I wish to thank Mr Howard for his new system. On behalf of my small business clients, I would like to potentially welcome Mr Beazley to the Lodge at the next election.

© Irfan Yusuf 2005

Wednesday, August 17, 2005

BOOK REVIEW: Genuine Expert Explodes Terror Myths

BOOK: Terrorism Explained: the facts about terrorism and terrorist groups
AUTHOR: Clive Williams
PUBLISHER: New Holland Publishers, Sydney, Australia
Recommended Retail Price $24.95

In our post-September-11 world, every man, woman and dog is popping up as an expert on terrorism. Terrorist “experts” are being bought and sold in the market of ideas, and many are happy to sell themselves to the highest bidder. Many have little in the way of formal training and genuine hands-on expertise.

One terror expert has appeared regularly on the terror circuit, speaking across the world and even appearing in Australia as a guest of the Centre for Independent Studies.

Dr Daniel Pipes has been described by ever-perceptive Miranda Devine as an “Islam scholar”. He holds a PhD in medieval European history from Harvard University, and apparently speaks and reads fluent Arabic.

When it comes to modern Muslim political radicalism, Dr Pipes’ qualifications make him as useful to serious understanding of the phenomenon as Sheik Hilali’s extensive qualifications make him as an adviser on youth affairs to the Australian Federation of Islamic Councils.

After all, what Pipes describes as “Islamism” bears little resemblance to Medieval European or even Medieval Muslim thought. And most Muslim extremists read material written in Urdu and Farsi.

Dr Rohan Gunaratna is another fascinating study in terror expertise. When he is not engaging in group defamation of Tamils, Dr Gunaratna lambasts Western governments for … wait for it … not protecting democracy by denying Muslim communities civil liberties.

A bit like suggesting mass-floods as a solution to tsunami-ravaged areas in Tamil Nadu. Then again, given Gunaratna’s record with Tamils, we might actually be reading him suggesting this!

Clive Williams doesn’t fit into either of these categories of alleged expertise. This Australian author teaches anti-terrorism to students at the Australian National University. Before embarking on an academic career, Williams served as an Army intelligence officer and was awarded the Medal for Gallantry in Vietnam.

Unlike presumed experts on terrorism, Williams has been involved in defence intelligence collection and analysis for over 3 decades. He has not merely been writing columns for New York tabloid newspapers or generating editorials in multiple languages on personal websites.

And like all real experts. Williams can see all sides of the argument. He argues that major terrorist incidents will continue to occur in western countries, especially the United States. Reason? Williams writes in his Preface:

“This seems inevitable given the insensitive way in which many minority Muslim sections of the US population have been treated, the increased Muslim anger against the United States as a result of its international counterterrorism campaign post-September 11, its unqualified support for Israel and the continuing detention of alleged Al Qaeda and Taliban fighters.”

Perhaps Messrs Howard, Ruddock and Downer should take the short drive from Parliament House down to the ANU campus in Acton and learn some valuable lessons from Williams. They might wish to anonymously sit in his lectures or tutorials. Perhaps their advisers might join them in this quest for genuine knowledge.

Perhaps the most attractive aspect of Williams’ book is his resistance of the common presumption that only Muslims can be terrorists. Williams debunks this theory with 2 simple ingredients – facts and logic.

Williams does not leave definitions to innuendo and group-smear. He provides a clear definition, explanation and classification of terrorism. He then charts out the history of terrorism and its various religious, secular and other manifestations. Williams provides various categories of terrorism not as water-tight compartments but rather as aids to understanding the complexity of motivations that lead persons to call themselves and/or innocents.

In Australia, Williams’ analysis seems to have fallen on deaf ears. The Commonwealth continues to proscribe only Muslim extremist groups as terrorist organisations. This despite growing evidence of religious extremism in other communities.

The London bombings coincided with the 10th anniversary of the Srebrenica massacre by Bosnian Serb forces led by General Ratko Mladic. Some 60 people died in London, whilst over 6,000 Muslim men and boys were massacred in one of many incidents of slaughter in July 1995.

Abundant evidence exists of Australians of Serbian Orthodox and Catholic background being involved in supporting, aiding and participating in the massacres and gang-rapes and other war crimes that took place in Bosnia during the war.

Evidence also exists of certain Australians actively being involved in efforts to derail the Middle East peace process by actively supporting opponents of the Israeli government’s disengagement from the Gaza Strip. Indeed, Daniel Pipes himself has written in support of extremists and against Ariel Sharon’s peace initiative.

Williams is not afraid to name names and identify individuals and groups (Muslim or otherwise) known to be involved in terrorist activities. He also provides lucid analysis of various forms of terrorism, their sources of finance and the real extent of their threat. All this without paranoid calls for the eradication of all civil liberties and declaration of a state of emergency.

Williams’ book is certainly not written with a view to winning elections or ratings wars. Nor does it make for entertaining tabloid reading. But what Williams does do is provide a balanced account of the real threat facing Australia and other western countries.

(For a limited time, readers can obtain a copy of Clive Williams’ book for $16.50 including postage and handling to anywhere in Australia. Purchasers of 5 or more copies can pick them up for $11 each. Hurry as there are very limited copies left. For further details, e-mail

© Irfan Yusuf 2005

Thursday, August 11, 2005

403 Words of Wisdom

The War Report – Part 1

Industrial Relations is turning into a theatre of war. But in this war, there are no clear sides. Mr Howard always thought that it would be the unions versus the rest of the civilised world. But he is now discovering that he cannot change the system without treading on the tows of some of his traditional allies.

Take the farmers. These are the traditional support base for Country Liberals and Nationals. You’d expect the farmers to be right behind the Howard reforms. And they are. Except that to be part of any federal system, farmers might have to incorporate.

According to figures quoted in the Australian Financial Review on 3 August 2005, around 90% of our 130,000 farming entities are unincorporated. Apart from increased paperwork and incidental expenses, incorporation also takes away some key tax benefits for farmers. In times of drought, with many farmers suffering heavy losses, these benefits represent perhaps the only chance of survival on the land.

Now, the National Farmers Federation (which gave the Liberal Party such political heavyweights as Ian McLaughlin) has signalled that it won’t support any reports which leave farmers worse off.

Farmers are not the only ones screaming. Caterers and restaurant owners are also upset with being forced to incorporate. One third of the members of Restaurants and Catering Australia (RCA), an employer group representing the catering industry, are sole traders or partnerships.

Federal Workplace Relations Minister Kevin Andrews confirmed on 2 August that any new workplace relations legislation would find its legislative basis in the corporations power, not just in the conciliation and arbitration power. Basically that means that, to benefit from the federal system, an employer will need to be incorporated.

Incorporation is not cheap. There is added paperwork, accountant’s fees, auditing fees and others extra work to be done. Companies pay a lower tax rate, but in many industries employers are better off staying sole traders or partnerships. These businesses would be most keen to participate in the new federal system. But refusal to incorporate may mean they are locked out.

It is pleasing to see employer organisations not blindly towing the line of the Coalition. Sadly, when it comes to unfair dismissal, some employers still haven’t realised that keeping current legal arrangements is probably more in their interests than forcing workers to use remedies that will prove much more expensive for employers in the long run.

© Sydney Lawyers Pty Limited 2005

Saturday, July 09, 2005

Melbourne QC Supports Internment of Imams

A prominent Melbourne Queens Counsel has called upon the Australian Government to detain Imams and persons caught photographing public monuments.

In a posting to his website dated 8 July 2005, Peter Faris QC called for the implementation of wartime legislation similar to that established during the Second World War.

“Wartime legislation like this is now necessary”, wrote Mr Faris. “Mullahs or Imams or whatever who preach or violence of Jihad should be detained.”

Mr Faris is a prominent Melbourne barrister and former Chairman of the National Crime Authority during 1989-90. He is an expert in criminal and computer law. In the past, he has worked as a criminal lawyer for the Victorian Aboriginal Legal Service and is a founder of the Fitzroy Legal Service.

Mr Faris was recently quoted as suggesting that torture of terror and criminal suspects was acceptable. His comments were described by the Chairman of the Criminal Bar Association, Lex Lasry QC, as “bizarre” and a “ludicrous concept”.

More telling than Mr Faris’ comments on his website were comments made by readers supporting his stand.

One contributor under the nickname “Gravelrash” has suggested that “some ozzie Mozzies should be in Baxter, for the sake of national security”.

Friday, July 08, 2005

425 Words of Wisdom

Observations on Section 106

Imagine you have been working in the same company for 20 years. You have worked unpaid overtime for at least 5 hours a week. You have developed a strong competency in your field and have worked with a range of managers, colleagues and subordinates.

Then after all this, a new owner takes over the company. There is a restructure. You are given your marching orders. You might be made to feel so uncomfortable that you will want to resign. You might be offered a fairly ordinary redundancy package.

What should you do? Who can you turn to? What remedies does the law provide to you?

One option is to claim that your employer breached its employment contract with you. It will be necessary for you to prove exactly what the contract is, how it was breached, what damages you have suffered and how these damages are connected to the breach. A tall order.

You might decide to try and claim just for the unpaid overtime. But how do you calculate it? And what records do you have of the time you worked there? Did you keep a diary for all those years? Did you work this overtime knowing that one day you might make a claim?

For long-term workers who get shafted, perhaps the best remedy is provided by Section 106 of the Industrial Relations Act. This particular remedy is broad, flexible and grants the NSW Industrial Relations Commission broad powers to remedy an unfair situation.

The unfair contracts jurisdiction has grown dramatically since it was introduced in 1959. Back then, it was used to protect the terms and conditions of contractors such as milk vendors and construction industry workers and tradesmen. Today, it is used as a general purpose remedy for a range of employment situations. In 2000-01, some 26% of the NSW Industrial Relations Commission workload was taken up with s106 matters.

Similar legislation also exists in Queensland. There are also similar provisions in the Commonwealth Workplace Relations Act, though these are somewhat more limited.

In NSW, you have to bring your claim within 12 months of your contract being terminated. This is a strict time limit and cannot be extended by the Commission. SO if you think you have been treated unfairly by your employer, the time to act is now.

The Howard Government is hoping to replace state industrial relations systems with a single federal system. This could spell the end of unfair contract claims. You therefore must act now if you think you have a claim.

Thursday, June 09, 2005

SNAIL Becomes Choc-a-holic

It was 8:30pm. I had decided to call it a night early after a long day of reading about other people’s legal problems. I had hardly closed my eyes when the blasted mobile rang.

“Get your ass down here! Choc’s fighting, and my brother can’t make it tonight.”

The voice was unmistakable. My friend Carter is perhaps the only Bankstown “Leb” who plays cricket. He prides himself on being skippier than the skips. But when Choc fights, Carter becomes a “brudder”.

And tonight he was determined to drag me out of my comfortable bed to watch someone I hardly had much enthusiasm for.

Anthony Mundine was a superb footballer, even if he played for the wrong team (sorry, I’m a Bulldogs supporter). But after he switched to boxing, I lost interest. Boxing is not a sport for Sensitive New-Age Industrial Lawyers (SNAILs).

I read Mundine’s sad attempt at an autobiography. I could see why it did not win him the Nobel prize for literature.

Mundine’s verbal antics also made me a bit sceptical. I’ve known Mundine’s manager (Abdullah Khoder) for over 20 years. We first met at a Muslim youth camp. “Abs” (as we like to call him) was always a bit over-the-top. Sadly, his heart of gold was often badly disguised by loud ranting.

So as I waited for the NRMA man to heat up my car, I made sure I packed my iPod. I was prepared for what I thought would be a boring night. And as I waited for Carter to bring my ticket, I saw police cars everywhere. They had their eyes firmly fixed on me.

Why me? OK, so I have tanned skin. But that has more to do with watching too many Bollywood movies and eating too many potato-filled samosas as a child. Why stare at me for?

I peered through the windows and could see people of all shades and colours running up stairs and into doors. Carter arrived and forced me to run up 2 flights of stairs with him. As I entered the packed hall, it was clear that this was not a hall ready to cheer for Mary Donaldson’s adopted country.

I had my iPod ready, and tuned it to AC/DC. As my ears were shaking all night long, I saw The Man himself floating like a butterfly across the ring. Opposite him was Mikkel Kessler, WBA super-middleweight champion.

Mundine (or “Choc”, as his family affectionately nicknamed him as a tribute to his childhood passion for chocolate) may have been floating like a butterfly, but he did not quite have the sting of a bee. By the first 4 rounds, it seemed this would be easy for Kessler.

My iPod then moved my ears onto the Baby Animals. Listening to hard rock in a crowd of thousands screaming at a boxing match has a strangely surreal feeling.

“mundine’s goin down”, I SMSed by my cousin. Like me, she’s not a huge fan of Choc. And like most nurses, she is no fan of boxing.

I must have jumped the gun because I suddenly could only see the backs of people’s heads. I switched off the iPod and stood up to see Choc giving Kessler the worst bee-stings he has probably had for years.

And it was at that moment that the entire crowd could see Choc’s huge heart placing itself at the heart of the fight. This was cardiac boxing at its best. Before long, I joined the chorus of “Go Choc! Go Choc!”.

I looked around and saw an enormously mixed crowd. This wasn’t a Country Road affair like the Rugby World Cup final. This was a night for all races and classes and sizes and nationalities.

Choc continued to fight hard. Someone sitting near me mentioned Choc’s wobbly legs. My eyes were firmly fixed on Choc’s fists and arms which had not a sign of wobble.

Choc fought to the bitter end. We cheered for him. Out of nowhere arose a Danish flag. The result was announced, much closer than we thought. Then amongst all the confusion in the ring, one man held up a familiar flag. The whole crowd cheered on the Aboriginal flag. Tonight was a night for all Australians in the crowd to experience some Black Pride.

Driving home, I turned to Stan Zemanek. He was on the phone to “Abs”, Choc’s manager. “Oh no, is this going to be other Sheik Feiz incident?”, I thought to myself. But Abs summed the situation up perfectly. “Choc fought with enormous heart. We are all so proud of him. It may seem weird to hear the manager of a defeated boxer sounding proud. But for Choc to come so close to victory shows he is a boxing hero”. Or words to that effect.

I guess the ARL will have to wait a few more years for Choc’s return. In the meantime, this reluctant SNAIL has become a confirmed choc-a-holic.

(Irfan Yusuf likes to think of himself as a Sensitive New-Age Industrial Lawyer.)

Friday, June 03, 2005

313 Words of Wisdom

The following letter to the editor appeared in the Australian Financial Review today. It follows the publication of the article that appeared on this blog concerning the near-futility of Mr Howard’s war on unfair dismissal laws. That article can now be accessed at the following location …

At the time of writing, one reader of the Online Opinion article has responded as follows:

“Two things worry me here, first of all in small business it too hard to find good employees and a long and expensive process to train them. Why on earth would a small business dismiss them unfairly? Seems a HUGE amount of red tape is created that succeeds in little but creating loopholes for expensive vexatious claims.

Secondly, I have a great fear of the government when it says it is going to "simplify" things. Our "simplfied" tax system has blown the tax act out to four times the Melbourne phone book. My Business interests now require 20 tax returns per year instead of 4. They must have a different dictionary to me.”

Anyway, this is what I had to say in the AFR …

IR's legal lode

John Howard's industrial relations package reads great on paper. But if only he had sought advice from one of Australia's great industrial counsel (who also happens to be his deputy and treasurer), the PM might have realised that closing off unfair dismissal merely opens more floodgates for common law, unfair contract and trade practices claims against employers.

And if employers and their representatives realised this, they would not be cheering so loudly. But sometimes employer unions represent their members' interests as badly as employee ones can.

Still, whoever wins in this titanic battle for industrial relations supremacy, one thing is for certain - lawyers will always win in the end.

Irfan Yusuf, Sydney Lawyers Pty Ltd, North Ryde, NSW.

Thursday, June 02, 2005

My First Textbook of Legal Practice

The law handbook - your practical guide to the law in New South Wales, edited by Vani Sripathy and Lorain Ogle, 6th edition, Redfern Legal Centre Publishing, Sydney, 1997, 1140pp, $60.

HAVING SPENT SIX YEARS AT LAW SCHOOL and then six months of torture at the College of Law, I thought I knew everything there was to know about law and legal practice. Then I started my first job as a solicitor in a general practice at Blacktown. It was sink or swim all the way. I was nervous. I sought help. I rang my uncle (also a solicitor).

After calming me down, my uncle gave me one piece of invaluable advice. He said, "If a new client comes in and asks you about an area of law you know peanuts about, always read up on it in the Law Handbook."

To this day, his advice rings true. The Redfern Legal Centre's Law Handbook is without a doubt the best cure to the jitters experienced by graduate solicitors. In fact, even the most experienced practitioner will find it useful. And with the publication of the 6th Edition, the Handbook has become even better. And it is quite current as well, with the law stated as at May 1997.

The new edition appears to be better arranged than previous editions. It is a masterpiece of plain English law, and covers just about every aspect of law as it affects the common person. Scattered throughout the text are summaries of decided cases, which are presented not as legal precedents but more as practical examples of how the law applies in real life. The arrangement of the chapters makes it extremely user friendly.

At the end of each chapter is a useful guide on helpful resources (including internet sites for surfers), as well as a comprehensive list of names and addresses of government departments and other agencies related to the area covered. This makes the book even more useful for a practitioner, combining as it does, a reference, a bibliography and an address and phone directory.

Given that the book is so useful to lawyers, how much more useful would it be to the average non-lawyer? And can you imagine its value if it were translated into common community languages such as Arabic or Vietnamese? A very expensive project, I admit. But certainly one for governments and ethnic community organisations to consider especially in these times of legal aid cutbacks and increasing complexity in the law.

But don't just take my word for it. Go out and buy one, and see for yourself. With over 75 contributors and at only $60, it's well worth the investment.

(This book review was first published in the Law Society Journal in November 1997. The Law Handbook continues to be an invaluable resource for lawyers and sensible people alike. By the time I finish formatting this article, the Handbook's 10th edition may have been released.)

Tuesday, May 31, 2005

357 Words of Wisdom

Workplace Policies

When we think of policies, we usually think of those wonderful-sounding motherhood statements political parties tend to release when an election is coming up. But believe it or not, policy documents are very good risk management tools in the workplace.

Employers, managers and even employees have duties to keep the workplace safe. These duties arise from numerous Acts of Parliament, the most important in New South Wales of which is the Occupational Health & Safety Act.

The OH&S Act is administered and enforced by WorkCover NSW. WorkCover inspectors have extensive powers to search and inspect premises and records of workplaces across New South Wales and in all industries. Apart from educating employers about their responsibilities, WorkCover inspectors also act as ‘informants’ in prosecutions carried out either in the Chief Industrial Magistrate’s Court (part of the Local Court system) or for more serious offences in the Industrial Relations Commission of NSW.

When defending a WorkCover prosecution or when seeking a lighter penalty, it is useful to be able to show the Court or Commission that your workplace has policies in place to avoid and/or minimise certain risks. You also should be able to show records of your workers and managers being trained in these policies and procedures. Further, you should show that your policies and procedures were developed in consultation with employees, managers and experts.

The type of policies and the level of procedural detail in each policy will vary depending on the nature of your workplace and industry. For instance, a small trucking company will generally not require an extremely detailed e-mail policy compared to, say, a software developer or a large graphic arts studio.

Speaking of e-mail policies, the Carr Government has introduced a Bill into the NSW Parliament which regulates the extent to which employers can snoop on the e-mail and internet usage of their employees. The legislation is designed to protect employee privacy, and provides guidelines and procedures for employers wishing to spy on their workers. Employers who already have an e-mail and internet policy in place may be exempt from the operation and sanctions of the Bill should it be passed.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Monday, May 30, 2005

934 Words of Wisdom

Impressions on Industrial Nirvana

LAWYER: Doctor, what is your impression of the accused?

PSYCHIATRIST: I’m sorry, sir, I don’t do impressions. My training is in psychiatry!

(from the slapstick comedy Flying High)

John Howard has been a favourite target of impressionists from Max Gillies to the crew on the Mike Carlton Breakfast Show. But in industrial relations law and policy, few have made such a big impression as our good PM.

And now after years of crusading for change, it seems that the PM will finally have his chance to implement industrial nirvana. But will it be as heavenly as Mr Howard and his supporters from employer organisations imagine?

Mr Howard’s policy looks absolutely superb on paper. It will be easier to sack workers, especially for smaller businesses with upto 100 employees. Unions will have less power as enterprise bargaining is phased out more quickly and individual and workplace contracts become the norm.

Labor premiers, of course, are up in arms. Premier Bob Carr, the man who slashed injured workers’ entitlements for the sake of appeasing insurers, has seen the light and will fight the Howard reforms. He will be joined by his colleagues from other states in what promises to be a legal showdown in the High Court.

Who will win? Will Mr Howard have his day of glory? Will unions and workers be saved? Who knows? Who cares? One thing is for certain – whoever wins, the lawyers always win.

And not just lawyers acting for either side of the High Court challenge. Howard’s reforms will simply not work because they, like everything else created in policy nirvana, do not take into account how industrial law works on the ground. Mr Howard has failed to take account of how litigants and their advisers will be looking at the system, and how judges and commissioners will be administering the system.

One would expect that having one of Australia’s premier industrial counsel as one’s deputy would have given Mr Howard some idea of which way his reform winds should be blowing. Then again, one would also expect Mr Howard to advocate on behalf of all Australian citizens caught up in a spot of legal bother overseas. Yeah, right.

Mr Howard’s reforms simply won’t work. Let’s look at unfair dismissal. Say my fictitious client Jasmine approached me and said she had been working somewhere for a decade before being shafted, would I first look at unfair dismissal? I might consider it as one option. But unfair dismissal has its disadvantages.

Jasmine could only get upto 6 months wages as compensation for unfair dismissal. She has to pay my fees out of that amount. If I take her matter to hearing, the fees might add upto $10,000. Her compensation might be 3 months wages. If she earns $800 per week, she will get $9,600 compensation. Tax would also have to be taken out.

If Jasmine loses the case and is found to have made a frivolous or vexatious application, she might have to pay the legal fees of her employer.

And all these factors have to be considered and an application lodged within 21 days of dismissal. Further, there must be a dismissal. Rarely will a resignation under pressure be regarded as a dismissal.

On the other hand, Jasmine may have resigned or been offered a redundancy package. She may even have been dismissed. She may well have a more lucrative option of an application under s106 of the NSW Industrial Relations Act for unfair contract. A similar provision also exists under Queensland law.

Jasmine could apply for a host of things. Her claim would not be limited to 6 months wages. Further, we could ask the Commission to make orders that her employer pay all or part of her legal fees. And we could couple it all with a claim for unpaid entitlements.

If employers realised how expensive a claim for unfair contract is (as opposed to an unfair dismissal claim), they would not be cheering Mr Howard on in his crusade against state unfair dismissal laws.

Next, let’s look at the focus on individual and workplace agreements. Who is going to advise on these agreements? Who will draft them? Will there be one standard agreement? Or will we see different agreements for different level staff? How will all this tie in with OH&S, anti-discrimination and other factors? And who will adjudicate in case of disputes?

If Mr Howard thinks employment law is just about agreement making and breaking, he clearly has not understood the ins and outs of employment law. Perhaps he could visit the websites of some of Australia’s most expensive lawyers and download some of their employment law client alerts. Perhaps next time he is in Sydney, he can walk a few doors down from his office and sit in on some matters in the NSW Industrial Relations Commission. Then he can jump in a cab and head down to what many IR lawyers affectionately call “the Fight Centre” (the IRC located in the Flight Centre Building) and see how litigants make their decisions.

I admire Mr Howard for trying to free up the industrial marketplace. It is badly in need of a shake-up. For too long, workers and employers have been hampered in their dealings by too much regulation and red tape. But me thinks the Howard reforms will achieve little for either side. Mr Howard has failed to consider litigation dollars and cents.

I am sure my colleagues will agree with me in saying that without considering litigation dollars and cents, the reforms will make little sense in the long run.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free, but unpaid contributions are always welcome!)

Thursday, May 26, 2005

366 Words of Wisdom

Records (no, not the vinyl musical ones)

Records are so important. When you employ people or engage contractors, you need to keep lots of documentation. I am not just talking about tax and payroll information. I am talking about information relating to recruiting a staff member, training them, assessing their performance, promoting them (above other staff in a competitive process) and managing their dismissal or resignation if necessary.

I have been involved in so many matters on behalf of employers in unfair dismissal and similar matters. Often the employers keep few records about the job description given to the employee, what was said at the job interview or even what hours the employee worked. Yet often evidence of these things is crucial once the matter gets before a Court or Commission.

Your business might employ 5 people. If you don’t keep records of all your dealings with employees, how will you be able to convince a Commission that your recollection is better than that of your employee? You have so many other things to consider – insurances, clients, customers, suppliers etc. Is it really possible for you to remember a conversation you had with Joe or Jasmine 18 months ago about the unpaid overtime they were doing?

In a situation where it is the employer’s word against the employee’s, Courts and Commissions will tend to side with the employee. Employees tend to keep better records, and their recollection of events and conversations is often more lucid.

Of course, that always is not the case. I have acted for community schools embroiled in unfair dismissal and unpaid wage claims. I have seen school principals meticulously keep records of all conversations with staff. Some have insisted that all communication be followed up with an e-mail or note.

On the other hand, even employers with dedicated Human Resources departments can come unstuck where lines of communication between management and HR are not working.

The moral of all this is that keeping a paper trail of your dealings with employees is absolutely crucial. It may not be enough to avoid litigation. But if legal proceedings do erupt, it may provide you with the edge needed to negotiate a commercially prudent settlement.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Wednesday, May 25, 2005

358 Words Of Wisdom

Show Us Your Jurisdiction

Our workplace relations laws are very hard to understand, even for lawyers. One reason is that we have not 1 but over 7 separate workplace legal systems (or jurisdictions) operating across the country. And those of our readers doing business in more than 1 state or territory will know how tough this can be. Good luck if you can keep track of it all!

But the Federal Government has announced that, come 1 July 2005, all this will change. The Federal Workplace Relations Minister Kevin Andrews made some announcements about this during a talk he gave at the Sydney Institute on 23 March 2005 (attended by yours truly).

1 July is when the Coalition has a majority in both houses of Parliament, giving it the ability to make fundamental structural changes and implement some of its most contentious policies.

Basically, the Federal Government (to save space, I’ll call them “the Feds”) can only make laws in areas where the Constitution provides it with a lawful excuse. One constitutional peg the Feds can lay their hat on is the ‘corporations’ power. This allows the Feds to make laws that affect certain kinds of corporate entities in certain areas. At least 75% of Australian workers are employed by some kind of corporation, even if it is just a 1-director shelf company.

At the moment, Federal workplace relations laws generally only apply to the Commonwealth Public Service employees, government enterprise workers and employees covered by a Federal Award or other instrument (such as an Australian Workplace Agreement or AWA).

One area where there has been much angst among small business has been Workers Compensation and Occupational Health & Safety (OH&S). In many states, union officials have the right to enter a business premises and check out its OH&S situation. And despite State ALP governments slashing workers’ entitlements in a bid to appease insurers, the fact remains that the Federal Comcare system is easier on employers and harder on injured workers.

The next 2 years should be an interesting time in workplace relations. All we can suggest is that you watch this space and get yourself an experienced workplace relations lawyer.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Monday, May 23, 2005

Welcome to Sydney Lawyers

Welcome to the blog of Sydney Lawyers Pty Limited, a Sydney-based (obviously!) legal practice servicing small business and individual clients. We hope you enjoy your stay here.

Sydney Lawyers represents a new generation in legal services. We are technology-savvy and make full use of the latest in online research and practice methods to bring our clients the most cost-effective legal services available.

Each of our lawyers operates from a virtual office. We visit our clients at their home or business or at some other location convenient to them.

We keep our rent and overheads low, passing on the savings to our clients. The price difference is substantial. The average law firm in Sydney charges at an hourly rate of $350 per hour. Our hourly rate rarely exceeds $250 per hour. That means using our services could save you and your business thousands. And that means more money in your pocket.

But legal services are not just about price. At Sydney Lawyers, we pride ourselves in offering the best quality legal services. Our team of lawyers will pursue your rights vigorously, whilst providing you with independent and commercially realistic advice on the prospects of your matter.

And unlike other law firms, our lawyers have a life. Because we rarely set foot in an office (unless it be our client's office), we have a much more balanced lifestyle. We believe that work/life balance is an essential element to providing independent legal advice and services. Lawyers who are snowed under with work in an office often find it difficult to think outside the square and look beyond the limited choices and solutions provided by the law.

We insist that our lawyers have certain qualities:

  • They are actively involved in their local communities.
  • They only take on enough work to enable them to attend to family and personal commitments.
  • They constantly update their knowledge.
  • They develop an expertise in no more than 2 jurisdictions.
  • They read widely.
  • They be prepared to express their opinions on social, political and other topics in a passionate manner. No sychophants are welcome here.
Sydney is a fast-paced and fast-growing city. Sydney Lawyers aims to match that growth and diversity in its staff. At this stage, our staff speak Hindi, Urdu and Bahasa Indonesia. We hope to add other languages in the near future.

If you are interested in joining our practice, feel free to drop us a line or an e-mail. You can contact our principal, Irfan Yusuf, on 0414 355 786.

You can also contact Mr Yusuf if you wish to discuss your legal matters.

This blog will be updated on a daily basis. It will contain news, commentary and legal updates on a variety of areas. Your comments are always welcome.