Question 2
Freedom of speech and expression is the backbone of any modern democracy. It is presumed to be a weapon which helps to form public opinion in terms of the political situation of a country, which is extremely important for the upcoming elections or at least for generating public consciousness about the torments and corruption of the ruling party (Gelber 2019). However, amidst the righteousness of generating public consciousness, it is also to be ensured that whether people are spreading rumours or unnecessary criticisms about the government, which is not conducive for a united country for the world to see (Aus Pub Law 2019).
In this regard, although the Australian Constitution empowers its citizens to enjoy free speech and expression, yet it demarcates the term ‘free’ with certain restrictions to curb people from spreading negativity and hate around the country. People who are closely associated to government agencies, needs to follow strict guidelines in terms of sharing information as they have an access to first-hand information about sensitive and confidential matters (Gelber 2019). The Northcote-Trevelyan paradigm guides that the public service professionals or the bureaucratic class should be neutral, without forming a strong judgement of the actions of the government, and instead must be stern towards the aim and objective of their service, which is serving the public and marinating public peace (Aus Pub Law 2019).
In this context, it would not be incorrect to hold the view that the political opinion of public servants should be curbed to a limit, to safeguard the disclosure of sensitive and confidential diplomatic information that could cause an outrage in the community. Therefore, the decision in the case of Comcare v Banerji [2019] HCA 23 was fair and reasonable, not only to safeguard the government but in fact to safeguard the safety of the community.
Question 3
An allegation of underpayment has been brought against ABC News, a national broadcaster, again (Ranosa 2020). It had admitted to having underpaid thousands of its staffs back in early 2019 after formal complaints were made against the broadcaster by the Community and Public Sector Union (CPSU).
A long-term incident of underpayment by ABC news was highlighted by CPSU, especially to its casual workers (Ranosa 2019). In this regard, a thorough examination was conducted by the broadcaster, contacted the employees who were underpaid and subsequently informed the Fair Work Ombudsman (Forsyth 2017). It had rectified its mistake, firstly by holding the people accountable for the error, followed with back pay to the aggrieved staffs and also acknowledging the fact that many of their casual staffs should have been given to permanent posts. The same “mistake” have repeated by the broadcaster this year as well, where a formal complaint has been brought against it by ‘Media, Entertainment and Arts Alliance’, stating that several employees of the broadcaster were not paid their redundancy entitlements on their voluntary exit (Forsyth 2017).
A further allegation has been brought forward which states that the company has been discriminatory towards its women employees, especially when they have been pregnant, as their permanent full-time service has been reduced to part-time service. Similarly, it has been reported that many senior women employee has been laid off or retrenched, and on interrogation, the company has reverted that it has received no formal complaint from any aggrieved employee, men or women, in this regard (Ranosa 2020).
The company’s final admittance of making senior women’s roles redundant, making the Co-vid crisis an appropriate excuse, was evidently for cost-saving. It was just and reasonable to make the company pay a compensation of $11.9 million to over 1800 casual employees for its “mistake” (Ranosa 2020).
Question 4
When it would be appropriate to form a gathering and work in a workplace like before, the employers shall have even more responsibility than before to ensure a safe and healthy workplace. Even if the scientists come up with a vaccine, it would not mean that the virus will be ineffective on everyone; a vaccine is only a protective shield from the virus and not a cure for the overall disease (Warner 2020).
Thus, maintaining social distance, wearing a mask and sanitising shall be the utmost priority for any workplace, where employees are coming together on the direction of their employers (Business Victoria 2020). However, even if the employee is being asked to work from home, the employer must ensure that the employee is safe, physically as well as mentally to get the job done for the employer. It is the responsibility of the employer to find the hazard that may be associated with the employment, assess the risk to which the employees are vulnerable and lastly to fix the issue or at least make the employee aware of it so that he may adopt necessary protection. As per the OHS standards, the employer is supposed to maintain a safe workplace with safe-working equipment (Warner 2020). As for now since the pandemic, the employer is also in charge of ensuring a sanitised, risk-free work environment for the employees who are coming to work, along with other facilities for the welfare of the employees, as per the OHS standards (Warner 2020).
Thus, directions like monitoring employee’s health, keeping a check on the working conditions, disseminating information about the importance of maintaining hygiene at the workplace for ensuring the safety of other employees are some of the guidelines as per the Victorian OHS law, which is believed to be appropriate for tackling the pandemic crisis at present (WorkSafe Victoria 2020).
Question 5
A very crucial milestone for unfair dismissal cases was set when the BP employee won his legal battle against the company for wrongfully firing him for sharing a meme on Hitler that allegedly made fun of the company and its management (Dempster 2016). Scott Tracy, the unfairly dismissed employee, allegedly compared his bosses to the Nazi dictator, which was extremely offensive to the eye of the management of the company, and hence he was dismissed and so was his initial lawsuit before the Fair Work Commission back in September 2019 (Bonyhady 2020). Looking deep into the matter and the main aspect of the dismissal, the Hitler meme was a clipping from a German movie from 2004, called ‘Downfall’ where the dictator was speaking about “enterprise agreement negotiations”, allegedly indicating the company’s negotiation agreements and the negotiator to be a ‘joke’ (Bonyhady 2020).
On an appeal before the Federal Court, the court found the meme to be literally a joke and not to be taken so seriously as to make a ground for dismissal of an employee. Thus, the company was directed to pay him a compensation of $200,000, even though the company argued against it by citing the “misconduct” of the employee and his scope to find another job while the case was sub-judice (Bonyhady 2020). Dismissing all arguments, the court ordered the compensation, partly as the lost salary and bonuses and partly as the deserved superannuation as per the Fair Work Act.
Therefore, it could be reasonably stated that the compensation of $200,000 awarded to the unfairly dismissed employee was fair and just, even though the harassment, heartache and unnecessary drama through which Mr Tracy had to go through cannot be evaluated in terms money. However, such a precedent is vital to set an example for all those employers who do not pay the required attention and consideration while deciding on dismissal.
Question 6
It is needless to mention that the pandemic has hit the economy and labour market badly, thereby affecting the demand and supply of goods and services as well as the needs of the people, both citizens and the immigrants (Milovanovic et al. 2020). With the closing down of most business operations, especially the Small and Medium Enterprises (SMEs), it is a difficult situation for the businessmen and their employees, covering the population strength of immigrants, already present in the country or those who aspire to migrate to Australia (The National Law Review 2020).
In addition to the shortage of work and a degrading economy, it is another bad news for the immigrants that the government is not permitting overseas movement, arrival or departure, thereby imposing a ban on travels and other forms of migration along with various new policies to combat the pandemic. As per one of the policies, the ‘Employer-sponsored Temporary Visa’ holders have been allowed to hold their visa status without marking the expiration of their visa tenure as a violation of the visa condition, due to the ban on overseas movement (The National Law Review 2020).
Since it is not possible to go back to one’s home country at this moment, the Department of Foreign Affairs has laid down recommendations that ask the immigrants to maintain their safety as well as the safety of others before making any unreasonable decision regarding their stay in Australia (Milovanovic et al. 2020). In this chaotic situation, where the government is trying to strike a balance between the domestic job market and the needs of the employer so that the down-grading economy of the country could be pulled up to a considerable extent.
References
Aus Pub Law, 2019. “A Powerful Chill”? Comcare V Banerji [2019] HCA 23 And The Political Expression Of Public Servants – AUSPUBLAW. [online] Auspublaw.org. Available at: <https://auspublaw.org/2019/08/a-powerful-chill-comcare-v-banerji-2019-hca-23/> [Accessed 2 September 2020].
Bonyhady, N., 2020. Scott Was Fired Over A Hitler Meme. Now His Boss Has To Pay Him $200,000. [online] The Sydney Morning Herald. Available at: <https://www.smh.com.au/national/scott-was-fired-over-a-hitler-meme-now-his-boss-has-to-pay-him-200-000-20200810-p55kep.html> [Accessed 3 September 2020].
Business Victoria, 2020. Make Your Business OHS Ready. [online] Business.vic.gov.au. Available at: <https://www.business.vic.gov.au/hiring-and-managing-staff/employer-responsibilities/occupational-health-and-safety> [Accessed 3 September 2020].
Comcare v Banerji [2019] HCA 23
Dempster, E., 2016. Poor performance management= poor defence to unfair dismissal. Governance Directions, 68(6), p.369.
Forsyth, A., 2017. The Victorian inquiry into labour hire and insecure work: addressing worker exploitation in complex business structures. E-Journal of International and Comparative Labour Studies, 6(3).
Gelber, K., 2019. The precarious protection of free speech in Australia: the Banerji case. Australian Journal of Human Rights, 25(3), pp.511-519.
Milovanovic, K., Higginson, S., Gillespie, J., Wall, L., Moy, N., Hinwood, M., Matthews, A., Williams, C., Melia, A. and Paolucci, F., 2020. COVID-19: The Need for an Australian Economic Pandemic Response Plan. Available at SSRN 3663929.
Ranosa, R., 2019. ABC Admits To Underpaying Thousands Of Workers. [online] Hcamag.com. Available at: <https://www.hcamag.com/au/news/general/abc-admits-to-underpaying-thousands-of-workers/159824> [Accessed 3 September 2020].
Ranosa, R., 2020. ABC Hit By Fair Work Action. [online] Hcamag.com. Available at: <https://www.hcamag.com/au/news/general/abc-hit-by-fair-work-action/232530> [Accessed 3 September 2020].
The National Law Review, 2020. COVID-19: (Australia) COVID-19 Migration Faqs. [online] The National Law Review. Available at: <https://www.natlawreview.com/article/covid-19-australia-covid-19-migration-faqs> [Accessed 4 September 2020].
Warner, G., 2020. Working from home in a post covid-19 environment. Built Environment Economist: Australia and New Zealand, (June/August 2020), p.4.
WorkSafe Victoria, 2020. Occupational Health And Safety – Your Legal Duties. [online] Worksafe.vic.gov.au. Available at: <https://www.worksafe.vic.gov.au/occupational-health-and-safety-your-legal-duties> [Accessed 3 September 2020].
