Decision in Unionist's case sets important precedent:
definition of industrial activity significantly broadened.
A decision in the Equal Opportunity case of Alison Thorne was handed down
yesterday. In that decision Ms Francis Millane, a member of the Equal
Opportunity Panel of the Victorian Civil and Administrative Appeals
Tribunal (VCAT) held that industrial activity "includes the activity of
compliance with the Award".
She also held that industrial activity includes past industrial activity
and anticipated future activity. This means that employees cannot be
treated in a discriminatory manner by their employer for because they took
industrial action in the past or propose to do so in the future. An
employer can no longer argue that discrimination against active unionists
is lawful because they do not happen to be engaging in industrial activity
at the precise moment they are treated unfairly.
Ms Millane found this even though she was unable to find that Ms Thorne's
treatment was unlawful discrimination, and therefore dismissed her complaint.
Alison, the local Australian Education Union (AEU) branch President and a
teacher of twenty years standing, was dismissed from her full time position
at Northern Melbourne Institute of TAFE (NMIT) on April 11 1997. She
alleged that when it retrenched her, NMIT management discriminated
unlawfully because of her industrial and political activities. She and two
other active unionists were sacked on the grounds of alleged excess, while
management employed poorly-paid casual teachers to front classes formerly
provided by the stood-down permanent staff. Other active unionists in her
department were demoted or offered part time jobs.
NMIT Management "acted to discriminate".
Significantly, the Tribunal also found that "In Brian McDonald's
case...whilst he asserted that the staff were all entitled to participate
in lawful industrial activity and to work in accordance with their award
conditions, he nevertheless acted in ways which appeared to be detrimental
to their interests." McDonald, she found, "is overtly hostile to the union
and staff who insist on their award conditions and, in the past, he has
acted to discriminate against those staff." McDonald's attitude,
"indicates the existence of an industrial environment in which the staff
might properly question the bona fides of any action impacting on active
unionists."
Speaking from the United States, where she is attending a conference of the
Freedom Socialist Party. Ms Thorne, the Melbourne organiser for the Party,
said:
"Naturally I'm disappointed that the limitations of the law and difficulty
of finding hard evidence, meant we could not prove the discrimination in
this instance was unlawful. However, I am delighted that by taking this
case we exposed the climate of discrimination and the hostility towards
unionists by the management at NMIT. It's a vindication of every active
union member at the Institute who lives in fear of being terminated because
of their involvement."
Thorne continued: "nothing in the Tribunal's ruling contradicts the basic
assertion that I was unfairly dismissed. However, as the Tribunal puts it:
'What might be unfair in an industrial setting and jurisdiction is not
necessarily helpful in determining discrimination under the Act.'"
Turning to the Equal Opportunity Act itself, Alison called for it to be
amended to reverse the burden of proof "so that those in positions of power
cannot hide behind a wall of silence in the knowledge that the victim of
their unlawful discrimination is highly unlikely to obtain enough evidence
to substantiate the complaint."
Contempt action looms.
In 1986, the Supreme Court ruled that Ms Thorne be employed at a TAFE
College and treated no less favourably than any other teacher. Despite that
order, in 1993 College Director, Brian McDonald, took steps to have her
removed from the College on the spurious ground that "she does not have any
legal basis for being at the College." However, during the recent hearing
NMIT management, through its legal counsel, conceded that the order is
still in force.
Ms Thorne, now working in a telephone call centre, said: "apart from the
loss of my retirement pension and other superannuation entitlements, NMIT
management conceded that I suffer an ongoing loss of $10,800 per year in
wages alone. If the Supreme Court Order is still in force how was I not
entitled to be at the Institute in 1993, and why was management able to
sack me in 1997?"
She concluded: "there is also an important principle of civil liberties at
stake. The State Government and its statutory authorities are not above the
law. In 1986 the State government agreed to be bound by an order of the
State's highest Court. Subsequently its officials colluded to subvert the
Court's authority by first transferring me to TAFE employment and then
treating me in a less favourable manner than teachers who remain in employment.
Preliminary legal advice suggests that NMIT management and the Education
Department are in contempt of court, and in some cases may have acted to
pervert the course of justice. Subject to further advice, I am more
inclined than not to seek redress at the Supreme Court."
More information: Peter Murray,
[EMAIL PROTECTED]
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