The High Court has made another in a series of judgments aiming to unwind decades of legal progress, returning employment law to a black-letter fantasy-land where there is no power imbalance between bosses and workers, and where the words on the page are more real than the actual circumstances of employment: “A majority of the High Court, led by Chief Justice Susan Kiefel, overruled the long-running approach by some courts to look beyond a worker’s contract to the social reality of the work relationship, and instead relied almost solely on the terms of the contract itself. … Experts say the decision effectively means that if lawyers draft a contract correctly businesses can avoid minimum award pay and conditions, workers’ compensation, superannuation, redundancy and other statutory requirements. … University of Adelaide law professor Andrew Stewart said the decision ‘widened a loophole’ that had existed in other rulings… ‘What the High Court majority has said carries with it the implication that it will be much easier for businesses to source labour from contractors rather than employees and achieve significant cost savings from doing so,’ he said. … Barrister David Chin, SC, said the ruling was a ‘significant shift’ in the courts’ approach to employment contracts that explicitly rejected an unequal power relationship between worker and employer as a relevant factor. ‘There can be little doubt that the approach of the High Court is to treat the construction of employment contracts like any other contract.'”
archive: February 2022
10 February 2022
1 February 2022
Bernard Keane is angry: “Hundreds of Australian aged care residents died miserable deaths in January as a consequence of the Morrison government’s staggering failures on aged care regulation, the rollout of booster shots and its refusal to address the aged care workforce crisis. The numbers are horrific, and a national disgrace: according to the government’s own figures, 389 aged care residents have perished as a result of COVID in January alone — far more than the total for 2021 — 282 — and already more than half the 2020 total which was dominated by another outbreak in [Commonwealth-regulated] aged care facilities in Victoria. … Literally every Commonwealth response to the pandemic within its aged care responsibility has been bungled and delayed, and the same disastrous errors have been repeated: the original vaccination rollout; the booster rollout; RAT supplies; PPE supplies; interventions by the Commonwealth aged care quality regulator, the Aged Care Quality and Safety Commission. … [T]hat hundreds of seniors are dying two years into a pandemic due to persistent government failure is a national tragedy that lies at the feet of Colbeck, his portfolio minister Greg Hunt and Prime Minister Scott Morrison. There is no excuse for, no explaining away, no dodging, this disaster. The blood of the dead is on their hands. And the grisly toll of their incompetence grows more horrific each day.”
Morrison is now offering a miserly $800 payment to aged care workers, but as Keane points out, he “has failed to adopt the main [aged care] royal commission recommendation to support the current Fair Work Commission case for a substantial pay increase to retain aged care workers in an increasingly tight labour market — something Labor’s Anthony Albanese committed to do at the weekend.”