Wednesday, December 04, 2013

The fix is in at fair work agency

PUBLIC trust in institutions is an important ingredient of social harmony and economic efficiency. In the absence of confidence in the workings of governments, courts, tribunals, regulators and public bodies generally, compliance with rules and laws can break down and order can crumple.

Luckily, in Australia, there is widespread support for most of our public institutions, support which is generally deserved. But there are exceptions. One obvious example of an institution of which the public has every right to be suspicious is the Fair Work Commission, a successor body to the Australian Industrial Relations Commission.

Misleadingly referred to as the "independent umpire", the staffing of the FWC was so distorted by the Labor government in favour of former union officials and Labor-affiliated persons that the public should doubt its impartiality - indeed, the common sense of its decisions.

And the performance of the organisation in dealing with clear regulatory breaches by a registered trade union suggests that some of the staff are more motivated by pleasing their (Labor) political masters than actually complying with the law.

Needless to say, these are serious accusations. But the weight of evidence from the past four-or-so years confirms the picture of an organisation that is stuffed to the gills with appointments based on political affiliation and decisions that are influenced by partisan bias.

When the new tribunal was established by the Fair Work Act 2009, both the then-prime minster, Kevin Rudd, and the workplace relations minister, Julia Gillard, ruled out any stacking.

"I will not be the prime minister of this country and appoint some endless tribe of trade union officials and ex-trade union officials to staff the key positions of this body," declared Kevin Rudd.

But this is precisely what happened. Of the 27 appointments made by the Labor government, 18 were either union officials or Labor affiliates. And of these appointments, nearly one-third were at the presidential level. The FWC is now a ridiculously top-heavy organisation, with half of all the members at the presidential level.

And just take a look at the salaries. The total annual remuneration of a vice-president is $534,000 and of a deputy president, it is $435,000. Even the more junior commissioners earn $358,000. In other words, nice gig if you can get it, particularly as most senior union officials, unless you are from the Health Services Union, earn considerably less than $200,000.

There is, of course, the possibility the appointees to the FWC will act in a detached and even-handed way. But, alas, it has not been the case. One member of the tribunal is so inclined to hand down lop-sided and prejudiced decisions that many of them are appealed. And as many members seem to take only a passing notice of the legislation that is intended to govern their decision-making, a large number of inconsistent decisions have been handed down, causing havoc for those parties that are bound by incoherent rulings.

The Australian Mines and Minerals Association, the resources industry employer group, has outlined a number of areas of significant inconsistency. These include: whether employers have the right to test for drug and alcohol use by workers; whether accessing pornographic material is the basis for justified dismissal; whether assaulting a fellow worker is the basis for justified dismissal; whether annual leave can be cashed out; and whether individual flexibility agreements must actually deliver on their promise.

If that is not bad enough, take the performance of the FWC in relation to the handling of the misuse of funds by officials of the HSU. Given the political sensitivities of the case - Craig Thomson, former HSU national secretary, was by then a critical member of parliament keeping Labor in power - the lack of urgency applied to the case is malodorous, nay, shocking. And when we learn that the prime minister's chief of staff contacted relevant persons within the FWC, the reputation of the tribunal is further undermined. There can be no legitimate reason even information gathering for this person to have contacted FWC staff.

And when the heat was soaring in the kitchen and there was a possibility that the general manager of the tribunal might be called before a Senate committee to explain the course of events in relation to the HSU investigation, the Labor government conveniently appointed this person a commissioner of the tribunal, thereby preventing him from answering any questions.

If there is one event that should seriously alarm the public and completely undermine its trust in this institution, it is this one.

But there's more and we can thank then workplace relations minister, Bill Shorten, for completing the destruction of the integrity of the FWC. There are a number of parts to the story, but the most egregious is the appointment of two vice-presidents, positions that had previously not existed. Egged on by the president of the FWC, who by rights should have expressed no opinion on the matter, the Labor government appointed two friendly vice-presidents to quash the two Coalition-appointed vice-presidents with (lower) deputy president status. It was this brazen. Even the Law Council of Australia was unimpressed.

The two Coalition appointees have been effectively marginalised by the president, with one of the new vice-presidents, in particular, being allocated a disproportionate number of significant full bench cases.

The reputation of the FWC has hit rock bottom. It has become a machine for approving unfair dismissal claims. Its handling of the recent penalty rates and apprentice pay cases underscores its complete lack of understanding of economics. More generally, many of its decisions are quite bizarre and anti-business.

I'm just pleased that the overpaid members of the FWC will increasingly find themselves overwhelmed by individual grievance cases as bullying is shifted into its jurisdiction. Of course, most members of the public have no knowledge of the operations of the FWC. If they did, it would make their hair curl - like mine.


Refer racial vilification straight to police: inquiry

Serious cases of racial vilification could be referred directly to the police for full investigation with a view to possible criminal prosecution under changes recommended by a NSW parliamentary inquiry.

The inquiry has also recommended the NSW government increase the period within which criminal complaints can be lodged from six months to a year, review current penalties for serious racial vilification and give police training about the offence.

However, it has rejected calls to lower the bar for prosecutions so that offensive racial slurs could be criminally prosecuted even if they do not incite violence.

The inquiry into racial vilification laws in NSW was initiated by the upper house Law and Justice Committee after a request by Premier Barry O'Farrell last year.

Mr O'Farrell said he was concerned there have been no successful criminal prosecutions in the history of the laws and that they have fallen out of step with community expectations.

The inquiry focused on Section 20D of the NSW Anti-Discrimination Act, which deals with the criminal offence of "serious racial vilification" and requires proof "beyond a reasonable doubt" for a prosecution.

Penalties of up to $5500 and six months' jail apply to anyone found guilty of inciting "hatred", "serious contempt" or "severe ridicule" of a person or group by threatening physical harm to them or their property or inciting others to do so on the basis of their race.

Yet not one of the 27 complaints referred to the Anti-Discrimination Board for criminal prosecution since 1998 has been prosecuted.

In the final report tabled in the NSW Parliament on Tuesday, committee chairman David Clarke, a Liberal MP, said the the operation of Section 20D had been hampered by "a number of procedural impediments".

The report recommends allowing the president of the Anti-Discrimination Board to refer serious racial vilification directly to police, rather than having seek consent from the Attorney-General, who then may refer it to the Director of Public Prosecutions.

It points out that while there is a 12 month timeframe in which to commence a prosecution under the Anti-Discrimination Act, the Criminal Procedure Act only allows six months.

The committee said this could prevent serious racial vilification matters being prosecuted and recommends extending the time within which a criminal matter can be commenced to 12 months.

The inquiry also recommends changing the law so serious racial vilification can be prosecuted even if the perpetrator is mistaken about the race of the person they are allegedly vilifying.

In their submissions to the inquiry, the NSW Jewish Board of Deputies and the NSW Community Relations Commission called for a radical overhaul of the laws, arguing that the reference to physical harm should be removed.

The board of deputies suggested a new offence of "conduct intended to harass on grounds of race" be introduced to allow criminal prosecutions for racial harassment that involves threats, intimidation or "serious racial abuse", whether or not a physical threat is involved.

The groups called for larger fines and jail sentences of up to three years.

The inquiry said the government should "review the adequacy" of existing penalties but agreed with stakeholders who argued that criminalising racial harassment would "unduly infringe on freedom of expression".

It said any amendments made by the government following the recommendations should be reviewed by the committee in five years.

If in place at the time, the recommended changes could have made it easier to criminally prosecute broadcaster Alan Jones for labelling Lebanese Muslims "vermin" and "mongrels" who "rape and pillage" in an April 2005 broadcast before the Cronulla race riots the following December.

Jones was instead ordered by the NSW Administrative Decisions Tribunal to apologise on air, which he did last December. Last month he was granted the right to an appeal.

Criminal prosecution of a woman who racially abused the ABC newsreader Jeremy Fernandez on a Sydney bus in February might also have been possible under the proposed changes.


Bleak employment prospects for young Australians

Young Australians have presented a bleak picture of their employment prospects, with only half believing they will get a job in their desired occupation and a quarter fearing there won't be enough work or training opportunities available when they finish school.

The survey of 15,000 people aged between 15 and 19 for Mission Australia found that the economy was the most pressing concern for young people.

Mission Australia chief executive Toby Hall said fear of unemployment was prevalent among both affluent and disadvantaged young people.

"It's a major concern across the social spectrum," he said.

Youth unemployment is up to three times higher than the average unemployment rate and one in four youths aged between 18 and 19 are not fully engaged in work, school or training.

Mr Hall said young people risk falling into an employment black hole unless policy makers rethink how to help young people into the workforce.

"We know that young people who don't finish year 10 and go into the workforce without qualifications are pretty much guaranteed to live their whole life in poverty," he said.

"They might not get that message when they're in year 8 but that's the reality of what will happen to them. We need to prepare young people to become part of the workforce Australia needs in the future."

Young women also expressed concern about discrimination at work, with females in full-time work earning 17.5 per cent less than full-time male workers, according to the ABS.

"If they do get a job, they are not going to be paid as as well as a male," he said. "Young women are saying this is unfair."

But the young women surveyed said they were more likely to pursue further education, with 70 per cent intending to go to university, compared with 57 per cent of males.

Marrickville student Eloise Willis-Hardy, 18, has just finished the first year of a communications degree at UTS and believes most graduates don't get the job they want.

"There is an expectation that it will be near impossible to go straight into a job of your choice," she said.

"The other expectation is that you'll have all this paid experience in the area you want to work in. Usually, a degree isn't enough. It's annoying. You go straight from school into a degree that you think will get you a job – but mostly that's not the case."

Maddison Potter, 19, had to move from Sydney to Brisbane to study for a degree in business and creative industry at QUT and expects she will have to continue moving to find work when she finishes her course.

"There aren't that many jobs in the creative industries and there is a lot of competition for the jobs that are there," she said.

"I have a feeling I'll be moving around a lot, looking for work, because it will be hard to find a job."

Their friend Bradley Gimbert, 19, of Marrickville, is working part-time in a cafe while he focuses on playing guitar and saving up to go overseas.

"I just haven't thought too much about a long-term career at the moment, to be honest," he said. "I would love to be able to make a bit of money and then travel."


ABC Catalyst TV show on cholesterol gets results

THE fallout from the controversial ABC TV Catalyst program on anti-cholesterol drugs is gathering pace with three in four doctors reporting patients have stopped their medications.

Almost half of the patients that have stopped their drugs are considered at high risk of a heart attack.

The ABC's own health expert Norman Swan has warned "people will die" as a result of the Catalyst program that questioned the role of cholesterol in heart disease and the benefit of statin drugs that reduce cholesterol.

Drug company Merck Sharp Dohme commissioned a survey of 150 doctors a week after the Catalyst program aired on ABC TV and found two in three had patients who had stopped taking the drugs or considered ceasing them.

A follow up study just released has found that had increased to three out of four doctors on two weeks later on November 21.

Again, half the patients who had dropped their medicine were considered at high risk of a heart attack.

And nine out of ten doctors told the survey they feared they had patients who had stopped their drugs without consulting a doctor.

The survey found two in three patients who wanted to drop their anti-cholesterol treatments after watching the Catalyst program cited side effects as another reason for stopping their drugs.

Almost a third said they wanted to drop their medication because of the cost.

Merck Sharp Dohme manufactures a cholesterol lowering stating drug called zocor.

The Catalyst program was based on the evidence of a group of doctors and a supplement salesperson who are all promoting their own books on the subject.

The Australian Medical Association branded the program "sensationalist" and the chair of the Australian Advisory Committee on the Safety of Medicines asked the ABC to pull part two of the program off the air.

One doctor responding to the Merck Sharp Dohme survey said "the Catalyst program has been the most biased and damaging TV show ... medically ... in years".

Another doctor commented that "it was a rubbish and biased program in the same grain as anti-vaccination propaganda".

"There should be a governing body to stop idiots reporting on shows like Catalyst that can have devastating results to the overall health of the community.......and Medicines Australia worry about us hard working Dr's being influenced by a pen or a dinner! " another doctor said.

Most of the doctors surveyed said they would not change their prescribing of statins as a result of the Catalyst program.

However, 14 per cent said they would decrease their prescribing of statins to low risk patients.

Shortly after Catalyst went to air the National Institute for Health and Care Excellence (Nice) in the United Kingdom announced it would reconsider its guidelines on the drugs as new evidence suggest more people could benefit from them.

Leading researcher and cardiologist Professor David Colquoun says a 1996 Australian trial of over 9,000 patients that he took part in found decreasing cholesterol in people who had experience a heart attack reduced the risk of stroke by 20 per cent, the need for a heart bypass by 25 per cent and a further heart attack by 30 per cent.


1 comment:

Paul said...

Having also observed people with serious illness that resulted from the well-known chemical effects of statins (not realy side effects but direct, predictable effects), I reserve judgement. I also know people who resolved their long-standing symptoms of fatigue, weakness and mental cloudiness after stopping their statins. The trouble is that cholesterol has very specific neurological functions in the body. Newer thinking seems to be seeing cholesterol/fats as becoming lodged in broken blood vessels, with said breaks caused by...the big sharp, sticky glucose molecules that we all have too many of running around our bodies these days, hence statins treat a consequence of the process, not the process itself, and in doing so may be starving nerve structures of essential nutrients. This is all still unfolding but the trouble with orthodoxies is they are so hard to shake when empires and fortunes have been built upon them. This argument has many years to run yet.