NMIT Unionists Update: Flawed EO Law Allows Only Partial Victory

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A decision in Alison Thorne’s Equal Opportunity Case against Northern Melbourne Institute of TAFE (NMIT) was handed down on August 25 last year.

Alison, the local Australian Education Union (AEU) branch President and a teacher of 20 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 staff 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.

Although the decision contained significant legal precedents which broadened the definition “industrial activity,” Alison was not able to “prove” that her treatment by the Institute had been “unlawful discrimination.” Her claim for reinstatement was therefore dismissed, even though Ms Frances Millane, a member of the Equal Opportunity Panel of the Victorian Civil and Administrative Appeals Tribunal (VCAT), did concede that Alison had not been treated fairly. Unfair treatment is not illegal, as far as Victoria’s Equal Opportunity Act is concerned. As the judgment puts it:

“Unfortunately, much of the evidence given by the Complainant and the witnesses called by her concentrated broadly on the fairness of the process engaged in to select and redeploy the teachers without really addressing the limitations imposed upon the Tribunal by the Act, which covers some specific areas of discrimination in the area of employment, but not unfair practices and unfair conduct in general. What might be unfair in an industrial setting and jurisdiction is not necessarily helpful in determining whether there was discrimination under the Act. Moreover, the Tribunal has no charter to determine with the benefit of hindsight who the best teachers were for reappointment and what was the fairest means of determining this.”

In other words: “Alison was treated unfairly. All her witnesses said so, it was not rebutted by management, and I therefore believe Alison Thorne. But the law says that’s not enough.”

Union members win. Despite this setback, the decision is a step forward for working people wishing to take on an employer who has discriminated against them for taking industrial action. Firstly, Member Millane found that “industrial activity” includes “the activity of compliance with the Award.” This means that if all an employee is doing is insisting on her legal entitlements, as contained in an Award or collective agreement, and is taking that action as part of an organised industrial campaign, then that action is protected under EO law. Previously, “industrial activity” had been interpreted as strikes and bans.

Ms Millane 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 because they took industrial action in the past or propose to do so in the future. In other words, a boss can’t sack a worker because last year they walked out, and argue that it is now a different issue — namely, that their sacking of a worker, merely because of past industrial activity, is legal. Nor can they argue that their sacking of a worker, merely because they might take industrial action, is legal. Previously they could make that argument.

NMIT Management “acted to discriminate.” Millane says that Institute Director, Brian McDonald, is not just your average anti-union boss: “Some might reasonably observe that this clash represents the classic conflict between the preservation of workplace conditions and the erosion of these conditions by management’s desire to increase competitiveness and profits.” But this battle was not such a conflict. Of McDonald’s attitude, the decision has this to say: He is “overtly hostile to the union and staff who insist on their Award conditions and entitlements and, in the past, he has acted to discriminate against those staff.”

She finds that, despite his protestations to the contrary, McDonald “acted in ways which appeared to be detrimental to their interests [staff who work to the Award]. Finally,“…the evidence of the Director’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.”

Responding to the decision, Alison said: “Naturally I’m disappointed that the limitations of the law and difficulty of finding hard evidence meant we could not prove that 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.” 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.”

High cost of “justice.” In fighting this case, the NMIT Unionists Campaign Committee raised well over $16,000 through wine bottlings, fundraising events and appeal letters. Even so, there is still up to $12,000 in outstanding legal bills, and so the fundraising will continue next year. Another piece of good news was handed down on November 24, when NMIT’s application for costs was refused. This was a huge relief to campaign members, because NMIT has spent well over $100,000 defending its anti-union practices.

Nothing ventured… In choosing to fight, Alison and the NMIT Unionists Campaign Committee showed that the struggle is its own reward. While we failed to win Alison’s reinstatement, we still succeeded in extending the boundaries for all Victorian union members. Not only that, but the core assertion of the case, that NMIT management actively discriminates against union members, was found to be true. In at least one case, the activities of NMIT Unionists were responsible for a contract worker being given permanency. Once again the motto “don’t mourn, organise” is proved correct!

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