Workers’ Constitutional Rights Arising From Unlawful Termination Case of Hilda
- The Honourable President and Members of the Senate in Parliament assembled
Hilda, an accountant, was forced to falsify accounting records and reports (cook the books). After she complained about her boss’s unlawful instructions and activities both inside and outside the company she was immediately dismissed on 16 December 2003.
In the Federal Court, a judge characterized Hilda’s complaint as “only in the capacity as employee” and the employer’s counsel conceded that: “the illegality is in fact on the part of the employer”. However the Federal Court struck out her claim of unlawful termination of employment certified by the Industrial Relations Commission and dismissed her appeals, holding her claim “had been instituted vexatiously or without reasonable cause” because she did not file a complaint against her boss’s unlawful instructions and activities “to a Court or Tribunal” before she was terminated.
Under the Covering Clause 5 of the Constitution: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……”, however, Hilda has been punished whilst she tried to uphold and obey law in the workplace, and sought protections from the courts. The Full Federal Court ignored Hilda’s appeal grounds in respect of workers’ Constitutional rights in the workplace.
On 21 April 2006, under the Judiciary Act, notices of a Constitutional matter certified by the High Court were serviced to the Attorneys-General of the Commonwealth, the States and the Territories. Apparently the High Court wanted to obtain opinions from the Attorneys-General, the elected officers and members of parliaments, on whether that workers’ Constitutional rights in the workplace arisen from this case were of "public importance", which was an essential “Criteria for granting special leave to appeal” under the Judiciary Act. However none of the Attorneys-General directly responded to the notices specifically addressed to them under the Judiciary Act.
A solicitor from Australian Government Solicitor responded to the notices by saying: “If special leave to appeal is granted, the Attorney-General might decide to intervene in the appeal”. Apparently, the High Court did not need the solicitor's opinion.
On 10 May 2006, the High Court did not doubt that Hilda’s appeals were about workers’ fundamental Constitutional rights and did not doubt that she could win her appeals if special leaves to appeal were granted, however, holding to the effect that they were not “sufficient to justify a grant of special leave to appeal” because “No Attorney-General has indicated a desire to intervene”, even though the High Court was informed on 5 May that 600 people had supported and signed the petitions against the laws made by the Federal Courts in the judgments of Hilda’s matter.
Implicitly, people’s fundamental Constitutional rights are important for the people. Over a thousand people have signed the petition on paper including Ms Sharan Burrow (the president of Australian Council of Trade Unions), Father Bruce Duncan (Redemptorist Priest), Mr Peter Marshall, (the president of Victorian Trade Hall Council) and Members of Parliaments.
Organizations Have Supported the Petition:
Central Branch of Union Solidarity (Vic), Maritime Union of Australia Victorian Branch, International Socialist Organization, Parramatta Peace Group (Sydney), Communication Workers Union, P+T Victorian Branch, Newtown Peace Group (Sydney), Leichhardt Peace Group (Sydney), Union Solidarity (Vic), Socialist Alternative, Socialist Party, Australian Services Union, Industrial Workers of the World, Friends of the Earth, Communication Workers Union of Australia, Socialist Alliance, Unite (Vic), Maritime Union of Australia Western Australia Branch, United Casual Workers Alliance (Gold Coast), Geelong and Region Trades and Labour Council, Australian Manufacturing Workers’ Union North Districts Committee (AMWU Victorian Branch), Thornbury Women’s Neighbourhood House (Vic), Darebin Workers Rights and Social Justice Campaign (Vic), Australian Manufacturing Workers’ Union Victorian Branch, Construction and General Division of Construction, Forestry, Mining and Energy Union Victorian Branch, United Firefighters Union Victorian Branch, Darebin Community Legal Centre (Vic), Australian Nursing Federation Victorian Branch, Australian Meat Industry Employees Union, Australian Education Union Victorian Branch, Mining and Energy Division of the CFMEU Victorian Branch, Australian Institute of Marine and Power Engineers Victoria/Tasmania Branch, Royal Melbourne Institute of Technology University Students Union, Communications, Electrical and Plumbing Union of Australia, Electrical Trades Union of Australia Southern States Branch, Australia Asia Worker Links Inc., Women's Information Referral Exchange (Vic), Australian Nursing Federation, Construction, Forestry, Mining and Energy Union, Country Alliance, Preston Reservoir Progress Assoc, National Tertiary Education Union, Western Suburbs Legal Service Inc., Union of Australian Women Southern Branch, Union of Australian Women, seditioncharter.org
MPs Have Supported the Petition:
Ms Nicola Roxon MP (ALP), the Hon Simon Crean MP (ALP), Mr Lindsay Tanner MP (ALP), Senator Lyn Allison (ADP), Ms Anna Burke MP (ALP), Ms Catherine King MP (ALP), Senator Gavin Marshall (ALP), Mr Ian Cohen MLC (NSW Greens), Ms Maria Vamvakinou MP (ALP), Mr Tony Burke MP (ALP), Ms Sharon Bird MP (ALP), Mr Chris Bowen MP (ALP), Mr Joel Fitzgibbon MP (ALP), Mr Carlo Carli MP (Vic ALP), Ms Kate Ellis MP (ALP), Mr Alistair Ross Harkness (Vic ALP), the Hon Warren Snowdon MP (ALP), Ms Sharon Grierson MP (ALP), Ms Lee Ms Rhiannon MLC (NSW Greens), Ms Sylvia Hale MLC (NSW Greens), Mr Gavan O’Connor MP (ALP), Mr Steve Georgana MP (ALP), Ms Tamara Lobato MP (Vic ALP), Mr Donato Antonio Nardella MP (Vic ALP), Senator Nick Sherry (ALP), Mr Rodney Sawford MP (ALP), Ms Dympna Anne Beard MP (Vic ALP), the Hon Marsha Rose Thomson MLC (Vic ALP), Mr Roger Price MP (ALP), Mr Bernie Ripoll MP (ALP), Mr Ian Douglas Trezise MP (Vic ALP), Mr Luke Donnellan MP (Vic ALP) and Dr Craig Emerson MP (ALP), Senator Trish Crossin (ALP), Senator Glenn Sterle (ALP), Mr Jude Perera MP (Vic ALP), Senator Linda Kirk (ALP), Senator Penny Wong (ALP) and Ruth Webber Senator (ALP), Senator Kate Lundy (ALP), Senator Ursula Stephens (ALP), Mr Anthony Robinson MP (Vic ALP), Senator George Campbell (ALP), Mr George Seitz MP (Vic ALP), Ms Kirsten Livermore MP (ALP), Mr John Eren MP (Vic ALP), Mr Shaun Leane MLC (Vic ALP), Senator Helen Polley (ALP), Ms Colleen Hartland MLC (Vic Greens), Mr Greg Barber MLC (Vic Greens), Senator Anne McEwen (ALP), Mr Nazih Elasmar MLC (Vic ALP), the Hon Robert Smith MLC (Vic ALP), Ms Gayle Tierney MLC (Vic ALP), Mr Tim Pallas MP (Vic ALP), Ms Fiona Richardson MP (Vic ALP), the Hon Gavin Jennings MLC (Vic ALP), Mr Evan Thornley MLC (Vic ALP) and Mr Martin Pakula MLC (Vic ALP)
Political Parties in Parliaments Have Supported the Petition:
Australian Greens, ACT Greens and Australian Democrats
Moreland City Council (Vic)
Online petition: http://gopetition.com/online/9491.html (to Victorian Parliament)
The Petition of the undersigned shows:
The Federal Court struck out Hilda Zhang’s claim of unlawful termination of employment, which is certified by the Industrial Relations Commission, and ordered her to pay the employer’s cost, holding that her claim was instituted “vexatiously or without reasonable cause” because she only complained about her former employer’s unlawful instructions and activities to the employer, the Auditor, the Unions, Victorian Employers Chamber of Commerce and Industry, the ATO and the WorkCover and not “to a Court or Tribunal" before the termination.
The judgments of the Federal Court do not uphold the employee’s right and obligation to uphold and obey law in the workplace under the Constitution.
Your petitioners request that the senate:
1. ensure that employees’ rights under the Constitution are upheld by the laws and courts;
2. ensure that the Attorney General of Commonwealth responds to Hilda Zhang’s Notice of A Constitutional Matter, which is certified by the High Court, and intervenes in the matter in the High Court under section 77J(1) of the Judiciary Act 1903.
The Workers’ Constitutional Rights Arising From Unlawful Termination Case of Hilda petition to The Honourable President and Members of the Senate in Parliament assembled was written by Daming He and is in the category Employment at GoPetition.