JOE Hockey told The Australian this week that “the government should not be subsidising poor workplace practices”. This suggests that the Coalition will junk the tradition of using taxpayers’ funds to prop up uneconomic privileges enjoyed by a small number of trade unionists.

This should send out a message to the players in Australia’s industrial relations system, members of the judiciary included.

Some judges are into black letter law, strictly interpreting statutes. Others believe that the law should not be bound by what politicians have enacted in legislation. It is rare, however, to find a judge who dabbles in both roles at different times. Yet this can be said of Mordy Bromberg, a Melbourne-based member of the Federal Court. Formerly a labour lawyer and human rights activist, he was appointed to the judiciary by the Rudd government in 2009.

Bromberg is perhaps best known for his role in the case of Eatock v Bolt. There he found that News Corp Australia columnist Andrew Bolt had breached the Racial Discrimination Act with his reference to nine Australians whom the judge described as “fair-skinned Aboriginal people”.

It is true that there were a number of errors in Bolt’s articles concerning this issue, which appeared in the Herald Sun. It is also true that Bromberg engaged in a liberal, rather than literal, interpretation of the Racial Discrimination Act.

Normally members of the judiciary examine what a person, against whom allegations of discrimination are made, said or wrote. Not Bromberg. In finding against Bolt, he referred to his “mocking and derisive tone”.

He held that Bolt’s language conveyed “implications beyond the literal meaning of the words utilised” and invited “the reader not only to read the lines, but to also read between the lines”. Of course, Bolt did not write anything between the lines. However, taking an activist role, the judge thought it appropriate to consider not only what Bolt wrote but his “tone”.

There was no such subjectivity evident when Bromberg handed down his judgment last month in Marmara v Toyota Motor Corporation Australia Limited. Carmelo Marmara and three other trade union shop stewards took action against the Melbourne-based car manufacturer. They alleged that Toyota had breached the Fair Work Act 2009, which was introduced by then workplace relations minister Julia Gillard. The judge essentially found in favour of the plaintiffs.

With his background as a labour lawyer, Bromberg is very much a member of what is irreverently termed the Industrial Relations Club. I describe this entity in my recently released monograph The Return of the Industrial Relations Club. Bromberg has worked as a solicitor, a self-employed barrister and now a judge.

The background of the case is as follows. In late 2011, Toyota’s Altona plant was subjected to industrial action by an entity titled the Federation of Vehicle Industry Unions.

There were two 24-hour strikes followed by four 48-hour strikes, in addition to two months of overtime bans.

Eventually the company effectively surrendered and reached an agreement with the unions that was approved by the Fair Work Commission.

Last October, Toyota’s president Max Yasuda sought changes to the agreement to help fund pay rises that have already been conceded and which will take effect in April and September this year.

The proposed amendments included a reduction in the maximum Christmas shutdown period from 21 to eight days, a cut in paid training days for union officials, an increase in the minimum time employees must be available for overtime and a decrease in the Sunday overtime pay rate from double time and a half to double time.

The Toyota workforce was due to vote on the company’s proposals on December 13, 2013, but the unions took legal action, maintaining that the existing agreement could not be varied in this way.

Bromberg’s decision, at the very least, has substantially delayed such a vote. This is further evidence of the fact that human rights advocates rarely exhibit an interest in the right of workers to sell their labour according to their wishes.

In coming to his decision, Bromberg insisted on a strict interpretation of the provisions of the Fair Work Act. There was no discussion of the “tone” of the legislation or of a need to read between the lines. Nor was there any reference to the possible unemployment consequences of the court’s decision.

Manufacturing cars in Australia is a difficult business, as the exits of Mitsubishi and Ford (under Labor) and Holden (under the Coalition) indicate. The future of Toyota is in serious doubt. Yet a judicial member of the IR Club has prevented Toyota employees from voting on a management proposal designed to cut back on over-generous conditions with a view to making the company viable in future years.

The Coalition is unimpressed with such uneconomic arrangements. Not before time.

Gerard Henderson is executive director of the Sydney Institute.

This should send out a message to the players in Australia’s industrial relations system, members of the judiciary included.

Some judges are into black letter law, strictly interpreting statutes. Others believe that the law should not be bound by what politicians have enacted in legislation. It is rare, however, to find a judge who dabbles in both roles at different times. Yet this can be said of Mordy Bromberg, a Melbourne-based member of the Federal Court. Formerly a labour lawyer and human rights activist, he was appointed to the judiciary by the Rudd government in 2009.

Bromberg is perhaps best known for his role in the case of Eatock v Bolt. There he found that News Corp Australia columnist Andrew Bolt had breached the Racial Discrimination Act with his reference to nine Australians whom the judge described as “fair-skinned Aboriginal people”.

It is true that there were a number of errors in Bolt’s articles concerning this issue, which appeared in the Herald Sun. It is also true that Bromberg engaged in a liberal, rather than literal, interpretation of the Racial Discrimination Act.

Normally members of the judiciary examine what a person, against whom allegations of discrimination are made, said or wrote. Not Bromberg. In finding against Bolt, he referred to his “mocking and derisive tone”.

He held that Bolt’s language conveyed “implications beyond the literal meaning of the words utilised” and invited “the reader not only to read the lines, but to also read between the lines”. Of course, Bolt did not write anything between the lines. However, taking an activist role, the judge thought it appropriate to consider not only what Bolt wrote but his “tone”.

There was no such subjectivity evident when Bromberg handed down his judgment last month in Marmara v Toyota Motor Corporation Australia Limited. Carmelo Marmara and three other trade union shop stewards took action against the Melbourne-based car manufacturer. They alleged that Toyota had breached the Fair Work Act 2009, which was introduced by then workplace relations minister Julia Gillard. The judge essentially found in favour of the plaintiffs.

With his background as a labour lawyer, Bromberg is very much a member of what is irreverently termed the Industrial Relations Club. I describe this entity in my recently released monograph The Return of the Industrial Relations Club. Bromberg has worked as a solicitor, a self-employed barrister and now a judge.

The background of the case is as follows. In late 2011, Toyota’s Altona plant was subjected to industrial action by an entity titled the Federation of Vehicle Industry Unions.

There were two 24-hour strikes followed by four 48-hour strikes, in addition to two months of overtime bans.

Eventually the company effectively surrendered and reached an agreement with the unions that was approved by the Fair Work Commission.

Last October, Toyota’s president Max Yasuda sought changes to the agreement to help fund pay rises that have already been conceded and which will take effect in April and September this year.

The proposed amendments included a reduction in the maximum Christmas shutdown period from 21 to eight days, a cut in paid training days for union officials, an increase in the minimum time employees must be available for overtime and a decrease in the Sunday overtime pay rate from double time and a half to double time.

The Toyota workforce was due to vote on the company’s proposals on December 13, 2013, but the unions took legal action, maintaining that the existing agreement could not be varied in this way.

Bromberg’s decision, at the very least, has substantially delayed such a vote. This is further evidence of the fact that human rights advocates rarely exhibit an interest in the right of workers to sell their labour according to their wishes.

In coming to his decision, Bromberg insisted on a strict interpretation of the provisions of the Fair Work Act. There was no discussion of the “tone” of the legislation or of a need to read between the lines. Nor was there any reference to the possible unemployment consequences of the court’s decision.

Manufacturing cars in Australia is a difficult business, as the exits of Mitsubishi and Ford (under Labor) and Holden (under the Coalition) indicate. The future of Toyota is in serious doubt. Yet a judicial member of the IR Club has prevented Toyota employees from voting on a management proposal designed to cut back on over-generous conditions with a view to making the company viable in future years.

The Coalition is unimpressed with such uneconomic arrangements. Not before time.

Gerard Henderson is executive director of the Sydney Institute.

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