A small win against a bad law for workers

There are many anti-worker laws out there. Also the way they are applied discriminates against workers.

One example is the case of customs officer, Shane Day, who won in the High Court against the tax commissioner on the issue of legal expenses incurred by him during his unfair dismissal case. Shane Day had to take the ATO commissioner to the High Court to win his legal expenses.

The Public Service Act ‘code of conduct’.

This Act brings into play the master/servant relationship where public servants like Shane Day can be sacked by management for minor or major misbehaviour.

One case of minor ‘misbehaviour’ was when a joke misfired with a supervisor after a long period of harassment by that supervisor.

The implication of the Shane Day case was the decision has significantly changed the current law — the decision addressed an imbalance in the tax law that allowed the employer to claim legal costs when workers were not. Murdoch paper, the Herald and Weekly Times, won a case for deductibility of legal expenses on the basis that they were protecting their brand name — the newspaper wastrying to defend itself against a charge of defamation.

The inference was that lawyers are looking for more cases to settle the matter further. It is in lawyers interest that tax deductiblity is available because it will give them more work. This may well be the deciding factor in legal minds. Yet not all lawyers are taking big fees, some are just getting by.

The Public Service Act 1999
The Public Service Act is bad law because management uses it to dismiss a public sector worker who they have decided they do not want (for one reason or another).

Doesn’t the boss always have the ability to fire you even if you do get re-instated under unfair dismissal?

Such reinstatements are rare. In the 2003-4 financial year only 42 people were re-instated by the Australian Industrial relations Commission [AIRC] out of over 8,000 unfair dismissals, about 0.5% of all unfair dismissal cases.

Workers are not seeking a job when they resist unfair dismissal, they are defending it, with little chance of success in a power balance weighted in favour of the boss.

Unfair Dismissal cases have been on the rise for some time now so the ATO may wish to have a go at stopping more deductions.

It is no secret that the ATO commissioner is soft on the big end of town, accepting their version of what tax is payable and often settling for far less tax when the rich go to court to fight ATO assessments. And when the rich do take the commissioner to court, they often win becasue of the bias of the courts. Take the case of Dame Elizabeth Murdoch who received a gift of $85 million form her son Rupert, the court ruled that the money was not assessable and no tax was payable.

Unfair Dismissal
What if you have no money to get a lawyer to challenge your boss and appeal if you lose? How do you advance to the next level if you do not have the financial resources of a job? If you do not have a job?

How long can worker go on? Especially when the union bows out with its bigger priorities, like survival. The worker can retrain but who wants to employ a sacked public servant?

You might get work, then you can still run up against the same middle class prejudices from your supervisor that got you sacked in the first place.

Minister Julia Gillard says that the government has re-instated unfair dismissal laws — but they are modelled on laws that were never any good in the first place — where the boss holds all the cards in the deck, and control of the workplace? to boot.

Also there are a long line of unfair dismissals on a mass scale where the boss sacks the entire workforce. These happen under labor or Coalition governments. Examples are Patricks on the Waterfront (Coalition), ARCO at Gordonstone mine (State Labor government), the Cobar Mine (State labor), and a number of meatworks like Mudginberri. Recenlty Hans Smallgoods chose another option  — the boss can just declare himself insolvent and get rid of workers and their entitlements that way. Another is the mass forced redundacy of 26% of staff at Victoria University in December 2008.

At the individual level, you would think the ATO had better things to do but hunt down workers and charge them bigger tax bills because they chose to fight unfair dismissal. It is hard to imagine the mentality of the tax officers engaged in this kind of activity. Perhaps they are trying to make a name for themselves, out after a promotion, who knows?

The ATO has been fighting unfair dismissal cases and denying cost aplications since the ‘code of conduct’ was brought in under the Public Service Act 1999. They have spent resources trying to defeat claims for unfair dismissal and then refusing deductions for legal expenses for tax office workers and workers of other departments. The ATO pursue the small taxpayer relentlessly.

In contrast, they spend little time and effort seeking taxes from large corporations and high wealth individuals, often offering deals to the highly litigious wealthy taxpayer. Huge reductions in tax bills have been offered to banks and financial institutions.

An ATO unfair dismissal case
In March 2004 the ATO unfairly dismissed a person who had taken out a successful compensation claim  against it.

The ATO used the new ‘Code of Conduct’ to make the unfair dismissal.

No dishonesty or bad behaviour was ever alleged.

The tax officer was competent at her job. She won her unfair dismissal case and was awarded 6 months pay.

She wanted her job back so appealed the decision of the AIRC. She was refused leave by the full bench of the AIRC because they said that they did not wish to substitute their decision in place of Commissioner Eames in the AIRC who said:

The punishment did not fit the crime … As I indicated earlier, I thought long and hard about that proposition but at the end of the day, came to the view that in spite of there being a valid reason for the termination which the Australian Taxation Office maintained all through this matter, the action that they took was disproportionate.

The legal bills were nearly twice that of her payout. She had to break into her super to pay the lawyers. She asked the court for costs. Yet Commissioner Eames refused to award costs against the ATO even though it had lost the case.

It gets worse.

The ATO then taxed her payout and sent her a larger bill. Having won the case she had to pay out nearly $35K in legal expenses, the former tax officer was then  hit with an extra tax bill for $7,300. So she objected asking for a proper assessment and for relief from tax on the payout. She was refused.

So she claimed the legal expenses, she was refused.

She went to the Administrative Appeals Tribunal and after 4 preliminary hearings was refused tax relief.

After months of waiting, just when she was due to go to court, the tax office rang her up (2 working days before the case was due to start) and said that they would allow some deductions for the legal costs but not the ones relating to a lawyer who had recommended challenging the ATO to pay the costs.

She would still have a tax bill of over $2,000.

She asked agian for relief becasue she had been unable to find permanent employment since she was sacked. The ATO officer refused again. So now she will have to go to court if she wants to get her tax bill reduced.

A business decision

But the ATO had  never issued a proper assessment or given any real (case law, argument or analysis) reasons for their original decision. This could have been embarrassing.Particuarly since Shane Day had just won in the High Court.

So after four years of denying her the claim the ATO officer rang the sacked ATO worker one full working day before the AAT hearing and conceded on all her objections.

They said that they would allow deduction for all her legal expenses in the unfair dismissal case and she will no longer have to pay the $7,300 tax debt they had raised against her.

So after all the refusals, the officious letters, the threat of penalties, general interest charges, they were all just a ‘try-on’ by this unfair employer to milk even more from an unfairly dismissed worker.

After conceding to the scked worker the ATO officer from the legal services department that had been deaing with the case said that he had been a union delegate in the Section Delegates Committee at the Moonee Ponds office. So here he was saying that he knew the sacked worker from the ATO when she was a union delegate. And he was schemeing to get her to pay tax that she did not legally owe. Great work from the CPSU delegate concerned, getting paid for shafting fellow workers! You have restored all my faith in the Union.

A political lesson

After years of quiet, union activists are trying to set up union support groups in one form or another. Among these are groups that hope to revitalise the political struggle for socialism. We believe that the future of unions and the struggle for socialism are inextricably linked, but that the relationship between workers organisation and political ideals requires serious thought. This book, After the Waterfront – the workers are quiet, is a contribution to the debate about strategy and organisation that we hope is useful in building workers’ political organisation

After the Waterfront – the workers are quiet is available online
or by writing to LeftPress PO Box 5093 West End 4101

Ian Curr
8 Dec 2008

Next: Dilbert comes to the Public Service


The Law Report

After the Waterfront – the workers are quiet

Labour Law 3rd Ed. by Breen Creighton & Stewart The Federation Press

One thought on “A small win against a bad law for workers

  1. yes hoges they are bullies!
    I am currently working at the ATO and very well may have to fight to fight an unfair dismissal case – looks like I could be pushing the ‘proverbial’ uphill.
    Whilst your being ‘actioned’ on the outside, I am being whipped on the inside.
    It is tantmount to dealing with a contankerous child or spoiled brat – their pedantics, their way: or the highway(to hell).

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