The behaviour of the Fairwork Commissioners throughout Covid is another reason why we need an Independent Judicial Commission.
The judgements of the Fairwork Commissioners in regards to Covid mandates were quite frankly callous, uninformed and just plain wrong.
Take some of the downright stupid statements from Commissioner Colman in the Coopers Brewery case:
• “[39] First, it is a matter of public record and a notorious fact that ATAGI is an expert body whose role is to provide evidence-based advice on the administration of vaccines to the Commonwealth, and also to the general public. ATAGI’s fifteen members hold senior positions at major universities, hospitals and research institutions around the country. ATAGI’s status as an expert body that provides advice to government and the public cannot seriously be doubted and indeed the applicants did not seek to impugn that status. Wrong. Colman’s job was to test ATAGI’s expertise and advice for accuracy. ATAGI provided no evidence based testing around the safety of the vaccine and ignored well known phenomenons such as original antigenic sin. To fail to do proper diligence shows Colman was negligent in his duty.
• “[40] Secondly, ATAGI has been continuously evaluating the epidemiological state of the country in respect to COVID-19 at its weekly meetings and updating the advice that it provides to the public on its website. Its advice has therefore remained current. I note that the formulation of ATAGI’s advice about the effect of vaccines on transmission of the virus changed over the relevant period. In updates from September to December 2021 ATAGI stated that vaccination was an intervention to ‘prevent infection, transmission and severe disease’. A statement on 24 December 2021 said that booster doses were ‘likely to increase protection against infection with the Omicron variant’. Then on 17 January 2022, an ATAGI update stated that vaccination ‘prevents serious disease and death, and reduces disease transmission’.”
Wrong. The fact that ATAGI kept changing its advice in such a short period of time as it become evident the vaccine didn’t work shows ATAGI had no idea of what it was doing.
• “[41] The fact that there may be views in the scientific community that differ from those of ATAGI about the effect of vaccines on transmission of the virus is neither surprising nor a reason to doubt the reliability of ATAGI’s advices. Wrong. Either Colman’s mental capacity needs to be seriously questioned with this statement or his impartiality. If there are different scientific views to ATAGI then that is a reason to question ATAGIs advice, especially when their initial advice was shown to be incorrect and they kept changing it after evidence showed they were wrong. Experts know in advance what is going to happen, not after the horse has bolted. You can read the rest of the findings yourself below but there is no way Commissioner Colman should be allowed to get away with this judgement. It is seriously flawed and yet again the question needs to be asked – who will hold the judges to account.
Committee on 15/02/2023
Education and Employment Legislation Committee
Fair Work
Senator RENNICK: Thank you. There’s this higher-level issue, though, that I have of the commissioner saying that you cannot question government bureaucrats. I thought the Fair Work Commission was supposed to be an independent body, and that they should’ve been looking at the applicant’s scientific experts, as well, not saying, ‘It’s the government advice; we have to take it without question.’ What’s the point of having an independent umpire if they’re just going to roll over and go along with government advice without question?
Mr Furlong: It’s been a long time since I read the Mt Arthur Coal decision, so I can’t talk to that.
Senator RENNICK: That was the Coopers Brewery one, where he said, ‘ATAGI are the experts; you can’t question them.’
Mr Furlong: What I can say is that it appears that the full bench, in that decision, which was issued on 3 December 2021, outlined the reasons for their decision in—
Senator RENNICK: That’s fine, but there’s the issue here that you have a fair work commissioner who has basically said, ‘We’re not going to question the government.’ They’re meant to be independent. It would seem to me that they weren’t independent when they came to this decision, and I think that’s an issue. So, as senators and representatives of the people, how do we go about calling into question whether or not this fair work commissioner is held accountable? Or is it another case of another independent body where they have no accountability whatsoever?
Mr Furlong : Decisions of members of the commission and the reasons for those decisions are published on the website. They’re open to public scrutiny and they must stand on their merits. Members of the commission, as you rightly point out, are independent statutory office holders who form those decisions having regard to the individual facts of each matter. They deal with the cases that are before them. They make decisions based within the statutory framework—
Senator RENNICK: I realise that, but how do we hold them to account? I think the commissioners are there until they’re 65, aren’t they?
Mr Furlong : Yes.
Senator RENNICK: I’m not sure what you have to do to remove them or whatever, but to me, where they make clearly incorrect decisions, or fail to show impartiality—the issue here is that they haven’t shown impartiality—how do we go about holding these people to account?
Mr Furlong : There are the appeal mechanisms, and I’ve outlined this in questions on notice as well. If there’s an aggrieved party to a decision of a member, then they can make an application to have the matter dealt with, in the first instance, by a full bench of the commission. If they’re still unsatisfied, then they can appeal to higher courts in higher jurisdictions.
Senator RENNICK: Okay. Tell me this. If we can’t hold Commissioner Colman to account for his impartiality, how was it then that Lyndall Dean was removed from hearing vaccination cases? Why was it that Iain Ross was able to remove her from making decisions in regard to vaccine cases but we can’t do anything about these other commissioners, some of whom are on record as mocking the unvaccinated? Why is it one set of rules for one commissioner and another set of rules for another commissioner?
Mr Furlong : The circumstances of those cases, I think, are very different. It’s been a long time since I’ve looked at those. I gave evidence—and it’s all on the public record—about the Kimber decision that you’re referring to. Deputy President Dean issued, I think—and it has been quite a long time—a dissenting decision in relation to that. It is on the public record, in terms of what the former president did in relation to that and the conduct of Deputy President Dean.
Senator RENNICK: Sorry, but how can we hold the president of the Fair Work Commission to account? Can we ask him to appear at these Senate hearings?
Mr Furlong : It is very uncommon. This was a previous regime as well, and he’s a former president of the commission.
Senator RENNICK: I realise he’s the former president, but he’s also the architect, in Paul Keating’s words, of superannuation, so mandates are a big thing for some of these people. The RBA governor appeared this morning, and that’s an independent body. The ABC’s independent. So the question is: can we get the president of the Fair Work Commission, or the former president of the Fair Work Commission, to come here and explain the reasons for his decisions and the decisions of his commissioners who, in my view, have clearly failed to display impartiality when making decisions?
Mr Furlong : The reasons for the sanctions in relation to Deputy President Dean were outlined clearly in my evidence. I made a statement in relation to this at the time, following the Kimber decision.
Senator RENNICK: Was that your decision or the president’s decision?
Mr Furlong : I was aware. It was the president’s decision. There’s a member code of conduct that provides guidance. I’m happy to table a copy of it; it’s a public document. It provides members—
CHAIR: I appreciate that, and Senator Rennick has a few more minutes to keep asking questions. But, as to that previous response to questions on notice and the previous advice you gave, I appreciate it already is in the public record, but you could reissue those. I’m just mindful that there a number of people that will be listening in on this, and it may well make it easier for people to be able to find those documents and make their assessments on the basis of those responses as well. I didn’t mean to cut you off, Senator Rennick; it was just to assist.
Senator RENNICK: Thanks, Chair. I appreciate that.
Mr Furlong : There’s a member code of conduct. It’s a voluntary code. It’s made by the president in consultation with members of the commission. It provides guidance to members on a number of things, but mainly their conduct in exercising their functions and in the upholding of the office as well. The former president made an assessment at that point—and you’ll see it in the documentation that we table—that the member code of conduct may not have been complied with at that time. As I said, there is a lot of information on the public record that I think will satisfy you, Senator.
