WORKPLACE: Parental leave ...

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 ...

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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EVIDENCE: Experts in civil litigation ...

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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Facing up to the workplace consequences of Facebook ...

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.

Words © 2008 Irfan Yusuf

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

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