The President of the Fair Work Commission, Justice Iain Ross, has been accused of bullying and bastardisation of judicial officers in the federal parliament. This is a big call and unheard of.
It was raised in parliament at the end of October last year by the federal Liberal Party MP Jamie Briggs. While Jamie Briggs did not use the terms bullying and bastardisation, that is what he clearly implied.
While certain elements of the story were reported in the media at the time, the bullying and bastardisation were totally missed and only came to my attention recently.
Background – How the scam was meant to work
The Labor Party have been stacking the Fair Work Commission (previously known as Fair Work Australia) with Labor Party cronies, mostly from the union movement. (Click here to see the Commission members)
One of the most recent appointments is the President Justice Iain Ross who is a former ACTU assistant secretary and Labor Party member. Mr Ross seems to have taken exception to the two commission members directly below him and it just happens by coincidence that both were Liberal Party appointments. The two are Vice President MJ Lawler and Vice President GR Watson. Neither Lawler or Watson are judges.
So the plan by Bill Shorten and Iain Ross was to rush legislation through parliament to appoint two new members directly below Justice Ross. But the trick was they would be above Michael Lawler and Graeme Watson. This would be done by giving the new appointments the same title “Vice President” but also make them judges, the same as Iain Ross which would have put them above Lawler and Watson.
The Bullying and Barstardisation
From reading of Hansard (31/10/12) and what Federal MP Jamie Briggs said there is no doubt what is or was happening at the Fair Work Commission under Justice Ross’s leadership. Michael Lawler and Graeme Watson have been starved of work and made to feel like lepers. It seems that Justice Ross was trying for a constructive dismissal and might still be.
The transcript is a fascinating read with the key parts below:
There is nothing in this report at all, yet the second main reason we are urgently debating this bill is the appointment of two new vice-presidents. Is it because the current two are too busy? The member for Melbourne will be interested to know that one of the current two is Mr Michael Lawler—who, we know, the Labor Party has some issues with, and the President of Fair Work Australia has some issues with. Mr Michael Lawler’s partner is Kathy Jackson. Kathy Jackson, of course, revealed so much information about the $20 million of rorting that occurred in the HSU, found by a report—ironically—from Fair Work Australia.
So we have Mr Michael Lawler, who has been sidelined in Fair Work Australia, based on information I have received—completely sidelined. He is far from busy, as I understand. And then we have Mr Graeme Watson. Mr Graeme Watson has two sins. The first is that he comes from Freehills, a legal organisation that largely represents employer organisations. I know the member for Melbourne knows Mr Watson and would not agree with many of Mr Watson’s views. But what the member for Melbourne would not do is discriminate against him on that basis. That is the first of Mr Watson’s sins that the President of Fair Work Australia is not pleased with.
The second is that Mr Watson had the temerity to suggest that after all the scandal relating to HSU, after all the failure in relation to the investigation by Fair Work Australia, after all the scandal and muck that came out about the failure of that organisation to do its job, it should change its name. And the President of Fair Work Australia was not very happy. Mr Ross was not very happy at all. Mr Watson, since that time, has regretted giving that speech, because professionally he is underutilised at this point in time.
So we have two vice-presidents who are there, not particularly busy. Sure, they are not flavour of the month for the current president. But then a piece of legislation pops up into this parliament, out of nowhere—no recommendations in this review, not a single line in well over 300 pages—recommending that $8 million of taxpayers’ money, at least, be spent on two new vice-presidents for no good reason. You have to wonder why. Then you look at the bill, and the bill empowers the two new vice-presidents to be more powerful than the current two sitting vice-presidents. It empowers them to be more senior.
And you, Mr Deputy Speaker Mitchell, know very well that the way Fair Work Australia—the old Industrial Relations Commission—works is that seniority is very important when handing out full-bench cases. When handing out full-bench cases, seniority rules the day. In this bill, the two yet unnamed—and that is a very important point here—new vice-presidents, which will cost taxpayers at least $8 million over the forward estimates, will be more powerful than the two out-of-favour current vice-presidents in Fair Work Australia. Two are out of favour, so appoint two new ones and give more power to the president to give them more work—because they may just have similar views, dare I say, to those of the current president and the current government.
We know that the current president, Mr Ross, and the minister have been close for a very long time. There is nothing wrong with that; Australian industrial relations is quite a small gene pool, as we know. They have been so close, in fact, that in 2006 the two of them appeared on the stage at a protest against—you guessed it—the former Howard government. The minister, at that point in time a candidate—I am not sure if he was still the AWU secretary—and on a superannuation industry board, along with Mr Ross, an ACTU official, were at a protest together against the Howard government, trying to overturn the laws. They are now working together to empower Mr Ross to be more powerful in respect of—and here is another provision in the bill, which I am sure you are also aware of, Mr Deputy Speaker—decisions for applicants to appeal when a member of Fair Work Australia has been allocated to a case and an applicant, let us say the CFMEU, is not happy with the commissioner who has been allocated. They will be able to appeal to the president to have a full-bench case.
Whacko! Guess what you have just done? You have given two new vice-presidents, who just might come from a similar background to what you want, with new powers for the president to allocate cases to them. Are you following me yet? This is what this is about. This has been debated urgently because this minister is trying to future-proof Fair Work Australia. (Click here to read more)
I have highlighted some of the parts of the transcript that show that Lawler and Watson have deliberately been given very little work because they have upset Justice Ross. This is quite often a strategy for companies to force employees to resign. The employee will feel embarrassed and humiliated at work and their self-esteem will drop and they will resign, which is a constructive dismissal. For the President of the peak Industrial body in Australia to do this leaves one greatly disturbed.
All Chief Justices can abuse their position
The President of the Fair Work Commission is basically in the same position as a Chief Justice or Chief Magistrate of the courts. They are almost impossible to sack, except for a joint sitting of parliament, and they are in their positions until retirement age. This gives them great power over the other judges, magistrates or commissioners. If you upset the chief of the court you will get the short end of the stick and get very little work or the cases that no one really wants. You certainly will not get any high-profile cases that can boost your career.
Justice Ross’ history was raised in another post that I did in April 2011 about dodgy judicial appointments which is worth a read. (Click here to read the post) Justice Ross is only in his position because of who he knows, not what he knows.
One of the key elements in the transcript that needs mentioning is where it says “with new powers for the president to allocate cases to them“. That happens in most courts where the Chief Justice can and will allocate cases to certain judges. It does not happen in every case, but it does happen.
Bill Shoten and the government seem to have since dropped off the idea of the two new appointments to the FWC or at least put it on the back burner for a while.
It is not everyday that the internal politics of the courts is made public by politicians even though they they are well aware of it.
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