A Sydney Lawyer's Blog

Social Security is no piece of cake

2011-12-02T08:53:00.000+11:00

“Dole bludger” is a phrase we often hear. So is “Centrelink mum”. They are phrases used to stigmatise people requiring income support (or who are trying to access such support) through the Centrelink system.

Popular mythology tells us that it is so damned easy to dip into the taxpayers’ largesse. Just go to the Centrelink office, fill out a form and viola! Start receiving more money than us poor battlers could dream of.

If only it was that easy. But try reading the Social Security Act 1991 (Cth). Better still, get your solicitor to try reading the Act and make sense of it.

I’m looking at a matter at the moment involving Section 1237AAD. Just think about that. Imagine the average punter trying to locate that even with the benefit online legislation navigation tools. Just imagine the average punter trying to read it all and understand it.

And you thought managing tax was complex.

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QLD: Some thoughts on Murgon

2011-11-13T21:25:00.001+11:00

Murgon is a one-horse town located somewhere between Brisbane and Cape York. No, that isn’t a lie. Okay, it isn’t very helpful.

Here’s a better description.

Murgon is located in the South Burnett Shire. It is inland from Gympie, which is the gun capital of Queensland. Murgon is around 100 km from Gympie. It is also around 40 km from Kingaroy, the peanut capital of Australia and home to a huge number of orthodox and not terribly orthodox Christian denominations.

Speaking of which, Murgon is the home of perhaps the most unorthodox denomination in the southern hemisphere. There’s a bloke from the nearby town of Tingoora who meets with his disciples at the Murgon hall. His message is quite simple really – that he is Jesus Christ. He has a girlfriend with whom he is living in ... er ... sin. Her name’s Mary Magdalene. At least that’s what it is now that she’s changed it.

But for my purposes, Murgon’s most important feature was that it was my home for some four months. It was also my place of work.

In the short time I was there, I grew quite fond of the place. I also grew fond of the people I worked with. Hopefully that fondness was reciprocated.

I worked in what was regarded as the toughest and least desirable location for a solicitor seeking employment in the QLD legal profession. This assessment was made by just about every other QLD lawyer I spoke to. Here’s a sample of the typical and more polite reactions:

“You poor arsehole.”

“Fuck, they sent you there?”

“Mate, they’re all fucking deadbeats over in Murgon. And the clients from there are fucking worse.”

“Murgon, eh? Fucking hole of a place.”

“I wouldn’t last there 4 months.”

Well I did last there 4 months. The people were lovely. The clients were interesting. And I enjoyed the experience immensely.

More later.

Words © 2011 Irfan Yusuf

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QLD Victims of Crime

2011-07-04T11:47:00.002+10:00

Queensland has a (relatively) new scheme for compensating victims of crime. Unless corresponding schemes in Victoria and NSW, the QLD scheme isn’t so much compensation as reimbursement. To quote from their official guide:

The Queensland Government provides financial assistance to eligible victims of crime to pay for or reimburse the costs of goods and services you need as a victim to recover from the effects of a violent crime.

If you were the victim of an act of violence that happened on or after 1 December 2009, you can obtain your financial assistance without first having to go to court. If the act of violence happened before 1 December 2009, you will not be able to bring a claim until:

•The offender is convicted in the District/Supreme Court; or
•You’re notified that the offender cannot be convicted.

Violent Crime

The “violent crime” has to have occurred in QLD and must have resulted in your suffering physical or psychological injury.

A violent crime is an act of violence that causes injury to at least one person. It includes:

•Assault
•Sexual assault/rape
•Grievous bodily harm
•Domestic/family violence
•Kidnapping/deprivation of liberty
•Stalking
•Murder/manslaughter
•Death caused by dangerous driving.

Injury

This basically refers to any of the following:

•Disease
•Intellectual impairment
•Mental illness/disorder
•Bodily harm
•Adverse impacts arising from sexual assault
•A combination of these injuries, including resulting pregnancy.

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The Best Interests of the Child

2011-07-04T09:45:00.002+10:00

Australian family law is governed by federal legislation called the Family Law Act, enacted in 1975. This legislation sets out how children of a relationship are to be looked after by their parents and how disputes are to be resolved should the relationship break up.

The basic rule is that any court making orders under the FLA must ensure that the best interests of the child are met. Section 60CA states that:

... a court must regard the best interests of the child as the paramount consideration.

The Objects

Section 60B(1) sets out how the objects of FLA dealing with the best interests of the child are to be met. Four objects are set out:

•Ensuring children can benefit from both parents having a meaningful involvement in their lives;

•Protecting children from physical or psychological harm, from abuse, neglect or family violence;

•Making sure children get adequate/proper parenting to help them achieve full potential; and

•Making sure parents meet duties and responsibilities re care welfare and development of children.

The Principles

Section 60B(2) sets out five principles underlying these objects. These principles apply unless where they are contrary to the child's best interests. The principles are:

•Children have the right to know and be cared for by both parents. This applies regardless of whether parents are married, separated, have never married and have never lived together.

•Children have the right to spend time with and communicate with both parents on a regular basis. Children also have this right when it comes to other people significant to their care and welfare e.g. grandparents and other relatives.

•Parents have joint duties regarding care, welfare and development of children.

•Parents should agree on their children’s future parenting.

•Children have the right to enjoy their culture, including with people who share that culture.

Special Consideration for ATSI Children

When it comes to culture, Aboriginal and Torres Strait Islander children hace special rights which recognise their unique cultures. Section 60B(3) states that an ATSI child's right to enjoy his/her ATSI culture includes the right to maintain a connection with that culture. It also includes the right to have any necessary support and encouragement to explore and develope a positive appreciation of that culture.

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CRIKEY: Those who judge judges, lawyers need a lesson in depression

2011-06-22T16:54:00.000+10:00

Here’s a great way to improve the quality of lawyers in Australia. Ensure that lawyers who want to renew their licences after five years of practice are made to sit through a rigorous psychological and psychiatric examination. They should also provide copies of all medical records.

Why? Lawyers are officers of the court. Some go on to become magistrates and judges. We need our legal profession to consist solely of stable, sane and depression-free individuals. We also need world peace, an end to all poverty and a Prime Minister worth voting for.

Two NSW magistrates have had to front up before the Parliament and explain to a bunch of politicians why their mental illness should not render them unfit to perform their duties. One wonders how many of the honourable members listening have (or should have) appointments with psychiatrists pencilled in their diaries.

This is the same Parliament whose numbers once included an opposition leader whose unfortunate gaffe led to a suicide attempt and admission to a psychiatric clinic. This traumatic roller-coaster ride has not stopped John Brogden from becoming chief executive of the Financial Services Council.

Brogden’s depression, a condition he shares with one in five of his countrymen and women, is not deemed by the financial services industry to render him incapacitated to do his job of overseeing the investment of about $1.4 trillion through superannuation, funds management and life insurance organisations. Yet for some reason, the Judicial Commission in its wisdom has decided that magistrate Brian Maloney is incapacitated after being diagnosed with bipolar II, an illness known to be very treatable with standard psychopharmacological treatments.

With respect, those who judge our judges and lawyers should understand that law is one of those professions very conducive to depression in its practitioners. Perhaps a good way to describe a lawyer’s job is to always assume the worst scenarios are going to happen and then protect his or her client from each of them. The best lawyers are almost always the ultimate pessimists. Too much positive thinking is dangerous in the legal game.

Life is especially tough for many small operators whose sources of work are drying out or legislated out of existence. These are often the lawyers prepared to do low-paying legal aid work for average punters. These are the lawyers who would struggle to pay their own hourly rate let alone the fees of the average private psychiatrist.

As magistrate Maloney told the NSW Parliament: “Interestingly, researchers have found that 40% of law students, 20% of barristers and 33% of solicitors have a mental illness. It is from this demographic that judicial officers are drawn. In the past 12 months three barristers have sadly taken their own lives. In recent years, two judges.”

So much of our criminal and civil justice system is carried out by the magistrates courts — simple traffic matters, drink-driving offences, family violence orders, debts and much more. A huge number of unrepresented persons, punters who can’t afford a lawyer and whose matter doesn’t come within legal aid guidelines, are seen by magistrates who generally bend over backwards to ensure no party is unfairly dealt with.

We need magistrates who have empathy and genuine life experience. That includes the experience of the large number of people suffering from mental illnesses who are disproportionately represented in our prisons, as parent-litigants in child protection cases and in so much of the business that comes before magistrates courts.

You’d think having a magistrate on the bench who is successfully managing mental illness would be an asset to the court. In short, if a magistrate is readily deemed incapacitated because of depression or bipolar disorder, the entire court system is potentially put at risk. And that’s enough to make anyone sick.

Words © 2011 Irfan Yusuf

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On Glorious Mackay ...

2011-06-20T20:04:00.002+10:00

Check out this awesome website. And check out this amazing scene.

Some of you may find it hard to imagine how anyone could resist working in such an environment. And just thinking about it makes me wonder why the hell I left the place.

One of the fringe benefits of working in the community legal sector is that you actually get the time to walk outside your office, indeed to drive away from your office, at around 5:30pm in time to enjoy a place like this. Better still, you feel good about yourself because you've actually helped people who simply cannot afford to go anywhere else.

In October 2009, after I'd finished writing and publishing and promoting my book, I had made a conscious decision not to go back to private practice in the big smoke. Community sector law proved a little less generous on my bank balance, but the benefits as far as lifestyle have been superb. It has also allowed me to see and live in parts of Australia I never expected to visit even on holidays.

Surviving on $65,000 per year for putting your unrestricted practising certificate on the line may not sound like a terribly good return on a 6 year study and decade work investment. Still, if it means sitting down on a hilltop cafe overlooking this ...

... whilst avoiding the inevitable second divorce and/or impending nervous breakdown of many a partner of a metropolitan law firm, then surely the pay cut is worth it.

Stupid me stayed in this gorgeous place only 10 months. At the time I regarded Mackay as a cultural wasteland, a veritable Boganville. And yes, in some ways it truly was.

But one of the great things about Mackay was its proximity to Airlie Beach and the Whitsundays, where the view was often even more spectacular.

It was a truly pleasurable 10 months. Among the areas of QLD law I managed to discover were:

a. A mega-tribunal that dealt with just about every jurisdiction under the planet. And calling itself QCAT. Pretty funky name.

b. The horrors of the QLD child protection system, one where sadly indigenous kids are over represented.

c. The rather scary prospect of being slapped with a "peace and good behaviour order" if I wasn't nice to my neighbours.

d. The amazing work done by an army of underpaid community and social workers, disability advocates and legal aid lawyers (though they got paid much more than we at the community legal centre did).

This isn't the kind of law I even knew existed in the days when I was busy working ridiculous hours defending employers who refused to dismiss their workers properly and/or pay award entitlements.

Words & Photos © 2011 Irfan Yusuf

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VIDEO: Why going to law school may not be a good idea ...

2010-10-29T19:54:00.000+11:00

(Thanks to SJH)

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Notes on Property Settlements

2010-09-22T17:02:00.001+10:00

[01] The term property in the Family Law Act 1975 (Cth) is defined very broadly. In includes assets owned individually, jointly or by a family company/trust. It also includes property once owned but recently disposed of.

[02] From 1 March 2009, de facto partners can use the Family Law Act to resolve their property disputes.

[03] Section 80 FLA sets out possible orders the Court can make on property and spousal maintenance. The Court can only make orders within the list.

[04] Property disputes involving married parties can be settled under the FLA at anytime before divorce. They can also be settled at anytime upto 12 months after a final divorce. That means the application must be filed within 12 months of the divorce.

[05] A formerly married person who failed to lodge his or her application within the 12 month post-divorce period will have to obtain permission from the Court before lodging the claim. They will have to show good reasons for not lodging earlier.

[06] De facto (including same-sex) partners must lodge their property and/or spousal maintenance application within two (2) years of the relationship ending.

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Profile in NSW Law Society Journal ...

2009-12-20T00:20:00.002+11:00

Media mentions: Irfan Yusuf
Sole practitioner
Sydney Lawyers

The story: I was contacted by a 2GB researcher to talk about Haron, a self-styled Muslim cleric currently before the courts. The mainstream media didn't precisely identify the charge, but it's apparently to do with harassing letters to families of Australian soldiers, particularly ones still in Afghanistan, and widows of soldiers.

Why did the media come to you? I suspect they picked me because the host had been involved in defamation litigation against some person they usually talk to, and they'd used stuff I'd written in evidence against that usual spokesman. So they expected me to be friendly, or their way inclined. I wasn't unfriendly, but I didn't play along.

Your background: I've done stints in law offices in government and private practice. Now I do mostly workplace issues. I also write comment in the mainstream and online media, and am the author of Once Were Radicals, which is a memoir, but mostly about young kids of Muslim heritage in Australia.

Your reflections: People see my name and the word lawyer and think lawyers are trained to spin, and so they make assumptions about who and what I am. Community advocacy isn't my favourite role, and I've taken it on only because others I see were doing such a bad job, in Sydney anyway. Usually, when some moron from within the religious establishment, or deemed to be, says something stupid, those who do the talking are middle to older aged men who have very poor English skills and almost no understanding of the broader culture and community.

How did the media treat the case? The initial researcher was sensible - she wanted to find out who this fellow is, and whether he has any religious qualifications or representative credentials. I asked if she'd approached anyone else and she said I was the first person she'd rung. On air, the host asked me why no one in 'your community' stands up and condemns this guy, and why did we have to go to so much effort to find you, and does the conspiracy of silence mean he represents what 'your people' really think? 300,000 Aussie Muslims have otherwise never heard of this guy. Fringe Muslim sheiks say ridiculous things. Why give them the attention they don't get from other Muslims?

Any tips for dealing with the media? Half the issue is to know what's worth talking about, and who's worth talking to. Not every microphone or camera is worth talking to. It's like if someone bowls a ball to you in cricket, you sometimes let it go through to the keeper. If it's a one-off, and you've never heard of the journalist before, look them up and find out what they're like. It's also a good idea to build up relationships and have an experienced journalist as a sounding board, to ask how they would respond.

Published in the December 2009 edition of the Law Society Journal.

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BLOG: Some good reasons for lawyers to be proud of what they do ...

2009-03-21T17:12:00.002+11:00

If you want confirmation from Pakistan about why lawyers aren't just about sucking blood and marrow out of the economy, click here.

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WORKPLACE: Parental leave ...

2009-03-08T17:50:00.003+11:00

There's an interesting letter concerning maternity leave in the Fin Review on Wednesday 4 March 2009 from a director of a Victorian company. The first paragarph really says it all ...

No small business employer will say so openly, but any attempt to extend maternity leave, requiring employers to keep jobs open for additional costs, will inevitably result in strengthening the preference for older women and confine more of those of childbearing age to casual roles.

Could increased regulation designed to protect women's job security have the opposite affect? As it is, we have multiple layers of state and federal anti-discrimination and workplace legislation that seem to protect women from discrimination on the basis of sex, discrimination on the basis of being a carer and termination due to proscribed reasons (such as discriminatory conduct). Exactly how this affects women's rights to flexible working arrangements after pregnancy and the birth of a child is difficult to say. Different tribunals apply legislative guidelines in conflicting ways with different results.

Will simplifying and streamlining the system really protect women? Is the current uncertainty providing more certainty for women's employment.

Words © 2009 Irfan Yusuf

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WORKPLACE: An update ...

2009-03-08T17:27:00.003+11:00

It's a pain in the backside trying to keep up with the latest changes in Workplace Relations. The Rudd Government has introduced a new Workplace Bill, but it's currently before the Senate and no one quite knows where it will go from there. The Senate numbers are tight, and lobbyists are having a field day trying to puish through their proposed amendments that suit their clients and stakeholders.

So for what it's worth, here's an update:

[01] Some employees will be worse off under the Commonwealth's proposed changes to the federal award system. These employees will be able to apply for top-up payments. Employers aren't happy with this as they claim it will unnecessarily complicate the system.

[02] Fair Work Australia, the new mega-regulator, will enforce the top-up system. Transitional legislation will be introduced into Parliament in around a week's time. Don't expect an English language version to be introduced anytime soon. Transitional legislation is often easier to read when written in Chinese. At least that's what Kevin Rudd would probably say. And anyone who has tried to read and make sense of transitional legislation will probably agree with him.

[03] Employers are rather peeved they aren't getting their own top-up should they suffer increased costs from the system.

[04] The proposed new federal award system being worked through by the Australian Industrial Relations Commission (AIRC) will "modernise" around 4,000 state and federal awards, and could affect some 6 million workers. Hopefully these workers will still have jobs by the end of the process.

[05] According to the Fin Review story "Employers cry foul over cost of awards shake-up" dated Wednesday 4 March 09 (from which this update is largely taken), some awards have been released thus far, and some industries (pharmacy, retail and restaurant) are peeved they have to bear increased costs.

[06] There's some fear of demarcation disputes (as in turf wars between unions covering the same set of workers) which could increase as the Rudd government will allow state unions to register under the federal system.

I'll continue with these updates if for no other reason than that it forces me to keep updated!

Words © 2009 Irfan Yusuf

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Discovering America?

2008-12-03T00:08:00.003+11:00

Well, not quite.

Some years ago, I printed out a paper entitled Death By Discovery written by a Sydney barriater named Philippe D Gray-Grzeszkiewicz. The paper was designed to be an introduction to the mysteries of that proceral aspect of so much litigation called discovery.

The author specifically mentions poor junior solicitors and paralegals in his introduction. He must have come across a fair few in his day, and he obviously knows ...

... the concerns of newly admitted solicitors and paralegals who have lacked an authoritative but relatively accessible introductory paper that deals with the mechanics of a task that is often delegated to them without much instruction or supervision.

Basically discovery is where parties (or their legal advisors) disclose to each other all documents relating to the dispute hat are in their possession or are within reach. I rarely received much help from my supervisors about this topic. Perhaps that's because my superbisors were way too sensible than to practise (and therefore allow me to practise) in jurisdictions where such procedures were needed.

The author provides 2 very interesting definistions of discovery. The first is from Martin Vernon's Bluff your way in Law and focusses more on discovery by the client than his or her legal adviser ...

Discovery - Process of detailing in a huge chronological list the ten cardboard boxes of random but crucial paperwork discoveredrvals by your client at unpredictable intervals {after he first told you that he has given you everything of relevance).

The second is a somewhat more scientific definition by Albert Szent-Gyorgi and published in American Biochemist ...

Discover consists of seeing what everybody has seen and thinking what nobody has thought.

Thankfully I'm not terribly interested in either form of discovery.

Words © 2008 Irfan Yusuf

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EVIDENCE: Experts in civil litigation ...

2008-11-17T19:38:00.007+11:00

I've had to return to law school and find out again how expert evidence works. Actually, I already know how it works, but I need to figure out the best manner in which to express this knowledge. Later in the week, I have to deliver a paper on the use of imams as expert witnesses in civil law cases. My main interest is in the area of workplace matters where employers are required to make reasonable provision for their employees' religious requirements. In such cases, you would thinke most imams would be the most logical choice of expert witnesses for either party or indeed the court or tribunal.

My audience will largely consist of non-lawyers. I guess this means I will have to explain the idea of evidence and why we have rules for determining what kinds of evidence a court will allow. In an increasing number of civil jurisdictions, the rules of evidence are applied in a more lax manner.

My starting point has been the following 2 documents:

1. J Burke, Osborn’s Concise Law Dictionary, Sixth Edition (1976) Sweet & Maxwell, London (Burke). I bought this copy in 1994 during a trip to Karachi after having completed my first six months working in a private legal practice. It cost 150 rupees, which in those days approximated to around A$7.

2. DM Walker, The Oxford Companion to Law (1980) Clarendon Press, Oxford (Walker). From memory, this was purchased at the Lifeline Book Fair in Canberra last year.

Some lawyers may be wondering why I'm not using a more specialised text such as Cross on Evidence. The main reason is that I don't have the time to translate esoteric legal textbooks into the kind of English non-lawyers (albeit academics and postgraduate students in Islamic studies) can understand.

The more interesting aspect of this topic is how the rules of qualifying witnesses as experts could apply in the case of imams, a profession who (at least in Australia) have no consistent method of accreditation.

Anyway, here are some threshhold points relating to evidence in general and expert evidence in particular ...

[01] Here is Burke's definition of evidence:

All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the proof of which is submitted to judicial investigation ...

[02] Burke includes in his definiton an wide variety of categories, including oral evidence given under oath.

[03] Here is Walker's definition of evidence:

Facts, inferences from facts, and statements which tend to convince a court or other inquiring body that certain facts, the state of which is unknown but being inquired into, are to a certain effect ...

[04] So why have rules of evidence? And what is their effect? Walker writes:

[T]he rules of evidence ... frequently restrict the kinds of evidence which may be adduced. The development of the law of evidence is ... on the whole a movement from reliance on non-rational grounds for decision to rational grounds.

[05] Next comes the issue of how an expert is defined. Burke defines an expert witness as follows:

A person with special skill, technical knowledge or professional qualification whose opinion on any manner within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant e.g. doctors and surgeons, handwriting experts, foreign lawyers. It is for the court to decide whether a witness is so qualified as to be considered an expert ...

[06] In some senses, an imam in Australia may be regarded as a foreign lawyer in that he is an expert in a legal system foreign to Australia. Many imams play the role of jurists in that they are consulted for advice on matters pertaining to sharia (Islamic sacred law) and how it might be implemented within an Australian context. Typical areas where this might occur are family law and estate matters. Quite a few Muslims are going to imams with a view to obtaining advice on how their wills are to be drafted. At least one Sydney imam (who is also a qualified solicitor) is marketing sharia-compliant wills.

[07] In what sense is an imam an expert? What special skill, technical knowledge and/or professional qualifications do imams have? And how can we determine whether an imam actually has such qualifications? Is there am agreed upon method for qualifying imams?

[08] Further, are imams necessarily qualified to give expert evidence on all areas of sharia? Does Islamic sacred law have peculiar and discrete areas of specialisation.

[09] Some years back, I read a primer on the Islamic law of estates. The primer was written by a group of South African imams, some of whom were also practising lawyers. One thing I remember from the book was that the law of estates was regarded as one of the most complex and difficult areas of sharia. If this is the case even for sharia lawyers, how much more will this be for Australian lawyers with little sharia expertise? And how much more for judges who must decide on matters involving sharia-compliant wills where the deceased's intentions much be determined with reference to intricate rules possibly external to the testamentary document itself?

[10] Walker defines expert evidence as follows:

Evidence given to a court by a person skilled and experienced in some professional or technical sphere of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements or similar means.

More soon.

Words © 2008 Irfan Yusuf

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VIDEO: President-elect Obama's victory speech ...

2008-11-07T22:40:00.001+11:00

HUMOUR/VIDEO: US Supreme Court decision on the death penalty ...

2008-11-05T18:37:00.002+11:00

Supreme Court Rules Death Penalty Is 'Totally Badass'

Facing up to the workplace consequences of Facebook ...

2008-09-06T14:39:00.003+10:00

It’s only been a year since I joined Facebook. I rarely update my Facebook page, except to post articles from time to time. Online social networking just isn’t my thing.

So I was surprised to read that this:

Employers are using sites such as Facebook and MySpace to check up on their employees and research prospective staff.

It gets worse. Under the headline “Facebook frolics can burn a hole in your office kudos”, the Australian Financial Review reports on Friday 20 June 2008 reports:

In Britain, retailer Argos last year sacked an employee who made negative comments about the company on Facebook.

Closer to home, managers who have been caught out by employees announcing their resignations online before they tell the boss are regularly scouring social network sites.

You even need to be careful about how you update your status. Flippant status updates can be deceptive and even dangerous. For instance, the last time I checked, my status update read “Irfan is asleep”. Arguably, that update was misleading.

Checking up on employees who have phoned in sick is also not unknown. Networkers who regularly provide “status updates” make such surveillance easy.

But just how reliable are such updates? And just how much should HR managers rely on information on Facebook? After all, people often don’t put their real photo up on their site. And I’m not always sleeping, even if my status update says otherwise.

Many people don’t behave all terribly seriously online. Social networking lends itself to colourful expressions and hyperbole. So if your status update says you’re partying or seriously bludging, you might actually be sitting in a work meeting.

It seems even your choice of cyber-friends can cause trouble.

It might not be your own message that brings you undone.

"People bring together all sorts of acquaintances online – and that could lead to trouble," said David Vaile, executive director of the University of NSW’s Cyberspace Law and Policy Centre.

“Online friends are not necessarily friendly,” Mr Vaile said. “They may be part of a broader
group, such as a particular geography or company. They are not restricted to people you trust."

All this might explain why friends tell me some of their former cyber-friends (including friends in real-life) are cancelling their Facebook and MySpace accounts.

Maternity leave – a huge source of labour pain for employers ...

2008-09-01T17:39:00.002+10:00

Some years back, I was asked by an employer to advise to advise on the least risky manner in which it could dismiss a female employee who was taking maternity leave and wanted to work from home after the birth of her child. The employer was not prepared to provide such a “flexible working arrangement” to its employee for various economic and other reasons.

I was hoping to advise my client on a certain course of action based on my reading of certain case law. I had just completed and sent my advice when a report appeared in the Sydney Morning Herald about a decision of the NSW Administrative Decisions Tribunal concerning a female public servant who sought similar flexible working arrangements. That decision went in the opposite direction of my advice.

If not handled sensitively, maternity leave can cause enormous labour pain to employers. Many employers don’t realise that employees proposing to take maternity leave can often have multiple remedies available to them. Remedies include action under State and Federal Industrial legislation (e.g. Industrial Relations Act (NSW) and Workplace Relations Act (Cth)), State and Federal Anti-Discrimination legislation, common law breach of contract action, claims under State Fair Trading and Federal Trade Practices Acts and much more.

One recent case illustrates how workplace litigation related to maternity leave can be commenced by employees at all levels of seniority. The Australian Financial Review reported on Wednesday 9 July 2008 of action commenced by a doctor against multinational pharmaceutical company GlaxoSmithKline (GSK). The action claimed that GSK had breached its obligations to the doctor by demoting her after she returned from maternity leave.

The doctor’s papers filed in the Federal Court include claims GSK engaged in misleading and deceptive conduct (presumably in breach of Section 52 of the Trade Practices Act) by making certain representations to her about her future employment as a medical director. The employee was seeking orders that she be reinstated to the same position she was at prior to going on maternity leave. She is also seeking compensation as well as a court order that any statutory penalty imposed on the company for breaching the Workplace Relations Act be paid directly to her. The maximum penalty payable for breach of maternity leave provisions under the WRA is $30,000.

The AFR report also mentioned two other recent cases, all of which involved employees using multiple remedies simultaneously.

Earlier this year ... a former employee of ... Perpetual accused the company of discriminating against her and breaching her contract by making her position redundant while she was on maternity leave.

Fiona Dunn, who earned almost $700,000 a year as general manager, wholesale, lodged a claim in March involving allegations of discrimination, breaches of the Trade Practices Act and
contractual breaches, and is seeking multimillion dollar damages ...

In another maternity leave-related case, a software company that sacked an employee who was on maternity leave because it liked her replacement better was fined the maximum penalty of $30,000 earlier this year.

Employers have to be extremely careful in this types of cases. Employees facing a change in their working conditions should also obtain advice on their rights, especially before signing any proposed settlement or contract upon their return from maternity leave.

Words © 2008 Irfan Yusuf

Spigelman J on Lord Mansfield

2008-08-05T02:58:00.000+10:00

It’s difficult to make a lecture on legal history sound interesting and entertaining. It’s even more difficult to imagine a judge successfully doing this.

His Honour Justice Spigelman, Chief Justice of the NSW Supreme Court, managed to comfortably achieve this requirement. His presentation to the Enlightenment Forum organised by the Centre for Independent Studies was a master-stroke of clarity, erudition and good humour.

His Honour focused on the enlightenment value that seeks to implement a culture of improvement through the application of reason. He said that no individual or society should be deemed sentenced by the Creator to remain at the same standard.

Spigelman J distinguished between reform and improvement. He illustrated his discussion by examining the life of one of England’s foremost jurists, Lord Mansfield.

English enlightenment was a more pragmatic affair than its counterparts in other parts of Europe. It focussed more on what works than on how the world should be. It was realistic, but at times too insular.

Lord Mansfield was an apparently rare entity - a Scottish Francophone. He didn’t share the insularity of the common lawyers of his day, especially in commercial matters. In his 30 year career, he developed English common law (especially in the area of property) in a manner that made English law consistent with developments in other parts of the world. He insisted that there must be freedom of contract and that contracts should be based on good faith.

Mansfield was in many ways a man ahead of his time. Many of the issues he addressed in his judgments – issues of delays and mounting costs to litigants - are still relevant today. Mansfield also was happy to refer commercial disputes to independent arbitrators. He was an interventionist judge, happy to actively participate in hearings as opposed to just leaving matters to the parties and/or their legal counsel. Indeed, many aspects of modern judicial practice (such as case management) can be traced back to Mansfield’s enlightened reforms.

Spigelman J cited an American judge Posner who once said that the law is the only discipline in which innovation is regarded as a pejorative concept. Lawyers prefer to speak of improvement as opposed to innovation. Yet Mansfield’s role in developing English commercial law represented both innovation and improvement.

The last time I read about Lord Mansfield was when I studied an undergraduate course in commercial law under Professor Mark Cooray. At the time, I found the entire development of the Sale of Goods Act rather boring. Spigelman J’s lecture might just revive an interest in the topic again.

Words © 2008 Irfan Yusuf

CASE NOTE: OH & S and staff car parking ...

2008-07-20T21:17:00.001+10:00

In Health Services Union v Ambulance Service of NSW, President Boland J of the Industrial Relations Commission of NSW Sydney considered:

> whether a matter concerning health and safety of employees constituted an “industrial matter” under s6 of the Industrial Relations Act 1996 (NSW) which would trigger the NSW Commission’s power to arbitrate.

> whether protecting employees from injury should be extended to the employer subsidising secure parking for staff who choose to drive to work where the workplace is an area notorious for crime.

> the extent of any such subsidy.

In September 2006, the Health Services Union notified the Commission of an industrial dispute with the Ambulance Service about the safety of ambulance drivers and other staff accessing the Sydney Ambulance Centre (SAC). The Centre was located in the Sydney Technology Park in the inner-city suburb of Redfern, “an area notorious for crime”. Staff had no secure and dedicated parking area, and the Ambulance Service had received reports of staff being assaulted and their vehicles interfered with, especially at night. The Centre also operated as a 24 hour Ambulance Station.

Some 11 months prior to this, the employer had commissioned a risk management/OHS staff member to conduct a security risk assessment. That assessment showed a severe risk of staff being assaulted on afternoon and night shifts when walking from their car to the Centre. There was also a high risk of damage to or theft of cars parked in the street. The Ambulance Service requested more police patrols and offered a staff escort where requested. However, staff escorts were not always available.

After some conciliation attempts by the Commission, the Service offered staff access to 50 dedicated car spaces in the Sydney Technology Park, though these would be available on a user pays basis at a maximum of $76.15 per fortnight. The matter was further complicated by the relocation of the Aeromedical & Medical Retrieval Services Unit (MRU), also part of the Ambulance Service, from St George Hospital to the SAC. MRU staff had enjoyed subsidised secure parking of $2 per week at St George Hospital and said refused to relocate to SAC unless secure parking was available. The Ambulance service offered to subsidise the cost of secure parking in Sydney Technology Park. The subsidy commenced at 75% of the employee cost and decreased by 25% each six months, ending after 18 months.

An interim arrangement was put in place whereby staff would park at the Ambulance Service State Headquarters and then be bussed to the SAC. In November 2007, after numerous more conciliations, the matter was referred for arbitration.

The Union insisted that MRU staff receive the same subsidy as at St George Hospital, and that remaining staff should be given “secure parking … accessible safely to all persons required to attend for duty at the Sydney Ambulance Centre” at a cost of no more than $9.50 per week. Further, staff commuting by public transport be provided with an escort to and from public transport locations.

When the matter reached arbitration, the employer made a procedural point that the Commission may be impeded from making an award or order in the arbitration without the Full Bench sitting. The President of the Commission ruled the Commission was not so impeded. In particular, the President ruled that a matter concerning the health and safety of employees involving eliminating or alleviating the risk of harm to those employees was an “industrial matter” under s6 of the Act which would trigger the Commission’s arbitration power.

The Commission ruled that, as far as possible, any employer subsidy of parking should apply equally to Ambulance Service staff, whether original Centre staff or relocated MRU staff. The Commission found there was a severe risk of assault to staff walking to and from their vehicles parked in the street. This meant any measures for protection of staff by the employer include the Ambulance Service subsidising car parking. The amount of the subsidy would vary depending on the number of employees requesting secured parking. The Commission ordered such a subsidy be provided and set out the terms of the subsidy.

Ensuring employee safety can include provision of secured parking subsidised by the employer, especially where the employer’s premises are in an area known to be notorious for crime.
Health Services Union v Ambulance Service of New South Wales (11 April 2008)

Words © 2008 Irfan Yusuf

A new form of personal property?

2008-07-20T21:01:00.002+10:00

The Australian Financial Review reported on Friday 18 July 2008 about some of the legal implications of the proposed emissions permit scheme.

Alex Abaxial writes ...

Emissions permits would create an entirely new form of personal property.

The story quotes a partner of Clayton Utz praising the proposal for not treating permits as mere licenses, instead opting for a situation where ...

you [can] do things like use it for security and to contract for equitable interests over it … [I]t becomes a free-flowing instrument within the Australian marketplace.

The story also reports about the impact of emission permits on fixed-price contracts. Companies are consulting lawyers “on ways to amend [their contracts] to pass price increases through to their customers” through the use of “carbon clauses” operating in a similar fashion to clauses used when the GST was introduced.

It will be interesting to see the extent to which Australian commercial and legal practice in this area is influenced by experience in the EU.

Words © 2008 Irfan Yusuf

EVENT: Launch of latest edition of anti-terror laws guidebook ...

2008-07-04T18:15:00.004+10:00

I received the following e-mail from the good folks at AMCRAN ...

Dear friends,

You are warmly invited to the third edition launch of the publication series Anti-Terrorism Laws: ASIO, the Police and You.

This series of publications is designed to educate the community on their rights and responsibilities under Australia's counter-terrorism laws. It is presented in four languages: English, Arabic, Bahasa Indonesia, and Urdu. The third edition covers new areas of law introduced since the first edition in 2004, including the association offence, sedition, preventative detention and control orders. This publication is essential reading, and provides a concise, simple, yet thorough coverage of the laws that all Australians should be aware of and understand.

The booklets will be distributed at no cost at the launch, and will also be available from AMCRAN's website (http://amcran.org/) in all four languages after the launch.

This project would not have been possible without the generous funding support of the Law and Justice Foundation of NSW, the UTS Law Faculty and UTS Students Association.

When: Thursday
17 July 2008
Time: 10 am – 12 pm
Where: Lansdowne Room, Bankstown Town Hall, Cnr Chapel & Rickard Rds,
Bankstown

Speakers include:
Mr Peter Russo, Defence lawyer of Dr. Mohamed Haneef
Dr Zachariah Matthews, President, Australian Islamic Mission; Board Member, AMCRAN
Ms Marika Dias, Solicitor, Convenor of Anti-Terrorism Laws Working Group, Federation of Community Legal Centres (Vic) Inc.
Mr Geoff Mulherin, Director, Law and Justice Foundation
RSVP by Friday 11 July 2008 essential: amcran@amcran.org
For more information please contact Ayishah Ansari, Legal Convenor NSW, at legalconvenornsw@amcran.org.

We look forward to seeing you at the launch.

Yours sincerely,

Australian Muslim Civil Rights Advocacy Network (AMCRAN)
Australian Muslim Civil Rights Advocacy Network
PO Box 3610Bankstown NSW 2200
Tel: (02) 9708 0009
Fax: (02) 9708 0008
amcran@amcran.org
http://amcran.org

Here is the actual invitation card (click on it to view enlarged version) ...

CRIKEY: Tabloid journalists and the presumption of innocence

2008-07-04T15:09:00.002+10:00

OK, I'm now going to try to make this blog a little more active. So I'll start with this entry published in Crikey today ...

Tabloid journalists and lawyers have a strange relationship. Tabloid journos often have little regard for the legal rights, privacy, presumption of innocence or reputation of (especially accused) persons they report on. So I found it quite ironic when a tabloid journo threatened me some years back with a defamation suit. S/he was unhappy with my description of his/her/its ridiculous reporting of a chap s/he claimed was a terrorist.

The chap was actually accused of keeping bomb-making materials in his house. The police had already ruled out terrorism-related charges. But for the journo reporting the incident, the accused was a Muslim who had framed Arabic calligraphy on his walls and a Koran and some religious books in his bookshelf.

Anyway, the point I’m trying to make is that some journos are quick to see accused deprived of their rights, without realising that their hysterical reporting threatens the rights of all of us. Journos included.

Rights that people have fought and died to defend over the centuries. Like the presumption of innocence, and the right to refuse to be interviewed by police. These rights form a key plank in our criminal justice system. In a liberal democracy, these rights form an important element of "The Rule of Law".

So when Ben Fordham accosted Belinda Neal and asked questions like "What have you got to hide?", he effectively suggested Neal’s exercise of a basic legal right was illegitimate. He basically said she must talk, if not to the police then to viewers of A Current Affair.

Now let’s put the shoe on the other foot. Let’s say Fordham or one of his camera crew were the subject of a police investigation for potentially assaulting Neal (as I hope they are), what would Fordham say if Neal suggested that he and/or his crew must submit to a police interview?

My guess is Fordham would cry foul and self-righteously claim political interference in the criminal justice system. Fordham might even instruct his lawyers to express their disgust at this political interference, both before the magistrate and the cameras.

Populist journos and politicians are crying foul over one Queensland judge’s decision to release convicted pedophile Dennis Ferguson after finding that media saturation had made it impossible for a jury to deal with the facts of Ferguson’s impending charges in a "dispassionate" manner, despite the weakness of the Crown’s case.

Instead of blasting the judge, tabloid journos and shock jocks need to consider how their own conduct is compromising our criminal justice system. These same shock jocks should ask themselves what would happen if they were accused of pedophilia or some other criminal offence. They should understand that even accused persons deserve human rights. After all, until they are convicted, they are innocent.

Tabloid media needs to understand the meaning of innocence. And before anyone accuses me of sounding like a typical criminal defence lawyer, allow me to disclose that my area of practice is employment and workplace relations law.

Copyright 2008 Irfan Yusuf

Spam Off

2007-07-14T19:30:00.000+10:00

Some Aussie companies continue to send spam into cyberspace.

You’d think they knew and understood the provisions of the Spam Act 2003 (Cth). You’d think they had reviewed their e-mail and internet policies to ensure compliance. You’d think they’d also reviewed client databases and contact details to ensure they’d obtained client consent for receiving commercial messages.

You’d think they’d trained their employees on anti-spam policies. You’d think they would have reviewed their marketing strategies and the methods they use to distribute commercial messages to existing and potential clients.

Organisations not complying with the Act can be fined in excess of $1 million a day. That’s a lot of money to lose for sending out commercial electronic messages without approval from the recipient or an exemption granted under the Act.

The Act defines an electronic message to include one sent by e-mail, SMS text or using an internet-based messaging system. Specifically excluded are fax and voice communications. The message, to be proscribed, must be for a specific commercial purpose e.g. offering or promoting or advertising goods, services, investments or land. Further, the message must have been send from Australia or be accessed in Australia.

© Irfan Yusuf 2007

Residential Tenancy Notes

2007-07-10T09:35:00.000+10:00

[01] A residential tenancy generally exists when the tenant pays the landlord for the right to occupy the landlord’s premises (or part thereof) for an agreed period.

[02] Rights and obligations of parties are covered by the Residential Tenancies Act (RTA).

[03] RTA applies to Housing Dept tenancies (unless tenancy contains term excluding RTA) and to community housing.

[04] RTA generally doesn’t apply to permanent residents of residential parks.

[05] RTA doesn’t apply to boarders or ledgers. Also doesn’t apply to persons paying ‘rent’ in nursing homes, hostels and holiday houses.

[06] RTA prescribes a tenancy form with standard terms that cannot be varied.

[07] RTA recognises 2 types of tenancies.

[08] A fixed term tenancy is for a fixed period stated in contract. During term, rent cannot be increased unless contract allows and 60 days written notice given. Usually, tenancy cannot be terminated. If tenant terminates, s/he must pay costs.

[09] A continuing tenancy allows rent to be increased or tenancy terminated provided landlord gives 60 days notice. Tenant can terminate on 21 days notice.

[10] Fixed term tenancy can become continuing when fixed period ends and tenancy continues.

[11] Before contract signed, agent/landlord must provide itemised statement of payments due. Only the following payments can be demanded: rent, bond money (4 weeks rent), contract preparation fee and any costs allowed by regulation.

© Irfan Yusuf 2007

Victorian Entry Requirements To Change

2006-10-01T00:06:00.000+10:00

Entry requirements for legal practitioners vary between states, with Victoria maintaining a system of ‘articled clerkships’, a system which has been the subject of intense criticism.

The Fin Review reported on 29 September 2006 that the Victorian system may well be overhauled as early as 2008. Under the new system, Victoria will adopt an approach similar to that used in Queensland. Admitting solicitors will enter into traineeship arrangements for some 12 months, which will combine work experience and compulsory training.

Any graduate unable to secure a traineeship will still be able to qualify by attending a practical legal training course, usually offered by a university law school.

The changes are designed to bring Victoria in line with a proposed streamlined national profession. The system of articled clerkships is believed to be an impediment to this as standards of training vary between different clerkships.

In smaller firms, clerks are typically lumped with a range of files from a broad range of practise areas. Larger firms frequently only expose clerks to limited specialised areas.

Under the new scheme, all forms taking on trainees will be required to provide experience in civil litigation, corporate law and property law. Firms will also be required to fund trainees attending courses in ethics and lawyers’ skills.

Existing barristers and solicitors may be required to attend an extra hour of compulsory CLE in ethics and professional responsibility.

The problem with new traineeships is that they might prove too expensive for smaller firms to carry out as they may not be able to afford the costs of external training in lawyers’ skills and ethics. One would hope that principals should be able to teach their junior staff the basic skills of lawyering – interviewing clients, taking file notes, arranging different kinds of files and maintaining trust accounts. Where a practice doesn’t keep a trust account, they might be able to make arrangements with another firm to provide training.

The proposed changes have received in-principle support from the Victorian Attorney-General.

© Irfan Yusuf 2006

Visit to Malaysia’s Human Rights Commission

2006-06-29T23:10:00.000+10:00

Recently I visited Malaysia on an exchange program organised by the Australia-Malaysia Institute, an initiative of the Department of Foreign Affairs & Trade (DFAT).

That visit included meetings with a variety of political, cultural and religious groups and institutions. Our first visit was on held on the morning of Monday 19 June 2006 to the Human Rights Commission of Malaysia (known under the Bahasa Malay acronym of SUHAKAM).

My notes of the visit included information provided by SUHAKAM Commissioners and staff. This may be summarised as follows:

[01] We were first taken through a presentation of SUHAKAM’s objects by SUHAKAM’s head of Policy & Research. We were then briefed by a number of SUHAKAM Commissioners, including Dato’ Siva Subramaniam from Malaysia’s minority Indian community.

[02] SUHAKAM was founded by a 1999 Act of the Malaysian Federal Parliament as a statutory body. It plays a variety of roles, including education on human rights issues and advising the government and parliament on the human rights implications of Bills. Many (if not most) SUHAKAM staff have legal backgrounds.

[03] SUHAKAM does not have powers of execution. It can only recommend changes to legislation or regulations. It cannot enforce its decisions. It does, however, have substantial powers to hold inquiries. This includes the power to summons law enforcement and government officials.

[04] SUHAKAM receives referrals from NGO’s and from walk-in clients. It often finds itself having to turn people away whose matters do not come within its limited terms of reference. Within these terms, SUHAKAM is largely free to set its own agenda.

[05] It often proves difficult to promote human rights principles in a country which has signed itself up for so few international human rights treaties. The complications are compounded by the complex nature of Malaysia’s multi-ethnic and multi-religious society.

[06] SUHAKAM must deal with many human rights issues facing indigenous communities in Sarawak and Sabah. These include land rights, housing and education. There is some provision in Sabah for courts to enforce indigenous customary law.

[07] Among SUHAKAM’s educational activities are: the production of school books on human rights which are now part of the state school curriculum, as well as leadership programs to instil human rights values in older students.

[08] SUHAKAM is publicly opposed to the controversial Internal Security Act (ISA) which allows for extra-judicial detention without meaningful judicial oversight. Much of SUHAKAM’s work involves highlighting the excesses arising from the implementation of ISA.

[09] SUHAKAM has been asked to oversee the conduct of campus elections.

[10] SUHAKAM officials are concerned about the anti-terror laws in Australia and their possible impact on Muslim communities. However, of greater concern to them is the treatment of indigenous peoples.

[11] SUHAKAM also investigates mistreatment of foreign workers including Indonesians, Pakistanis and Filipinos. It also deals with cased involving attempts to tear down houses of worship (including mosques) by roads and other infrastructure/planning authorities. Generally, such cases involve houses of worship built without proper planning approvals obtained.

© Irfan Yusuf 2006

David Hicks - Defending the Indefensible

2005-09-21T18:42:00.000+10:00

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. iyusuf@sydneylawyers.com.au

© Irfan Yusuf 2005

804 Words of Wisdom

2005-09-17T23:51:00.000+10:00

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

BOOK REVIEW: Genuine Expert Explodes Terror Myths

2005-08-17T23:49:00.000+10:00

BOOK: Terrorism Explained: the facts about terrorism and terrorist groups
AUTHOR: Clive Williams
PUBLISHER: New Holland Publishers, Sydney, Australia
2004
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 sydneylawyers@yahoo.com.au)

© Irfan Yusuf 2005

403 Words of Wisdom

2005-08-11T23:53:00.000+10:00

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

Melbourne QC Supports Internment of Imams

2005-07-09T15:03:00.000+10:00

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”.

425 Words of Wisdom

2005-07-08T19:31:00.000+10:00

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.

SNAIL Becomes Choc-a-holic

2005-06-09T01:17:00.000+10:00

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.)

313 Words of Wisdom

2005-06-03T17:34:00.000+10:00

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 …

http://www.onlineopinion.com.au/view.asp?article=3517

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 …

http://afr.com/articles/2005/06/03/1117568346483.html

IR's legal lode
2005/06/03

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.

My First Textbook of Legal Practice

2005-06-02T18:01:00.000+10:00

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.)

357 Words of Wisdom

2005-05-31T22:44:00.000+10:00

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.)

934 Words of Wisdom

2005-05-30T15:57:00.000+10:00

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!)

366 Words of Wisdom

2005-05-26T17:54:00.000+10:00

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.)

358 Words Of Wisdom

2005-05-25T00:58:00.000+10:00

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.)

Welcome to Sydney Lawyers

2005-05-23T15:04:00.000+10:00

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.