Ashby goes the Fair Work Act: more sleepless nights for Pete

I am not quite sure why James Ashby did not use this route to begin with.  And it will be very ironic if he were to win the case, using Labor’s own laws.

The relevent chapter of the Act is Part 3-1, which deals with general protections.  Under the act, employees have defined rights and are protected from adverse action in breach of those rights.

My guess is that Ashby’s counsel will be using the following section:

Division 5Other protections

351 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

But here is the real kicker.  THERE IS A REVERSE ONUS OF PROOF in this part of the act.  Slipper will have to PROVE that he did not discriminate against Ashby.  Ashby does not have to prove that he was discriminated against because of one of the outlined reasons.

To be sure, Fair Work Australia can convene a conference between the parties – that will be fun – and can advise the parties that the application would not have a reasonable prospect of success.

In all likelihood, the matter will be dealt with by the Federal Magistrates Court.

Note that Ashby’s substantive allegation of discrimination has not be heard at this stage.
The games continue.

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75 Responses to Ashby goes the Fair Work Act: more sleepless nights for Pete

  1. Up The Workers!

    Given the number of A.L.P. “little mates”, back-slappers, toadies and accomplices awarded “sheltered workshop” employment at F.W.A. at enormous taxpayer expense, is “Justice” any more likely to be served in that venue than by a sycophantic left-wing Judge from outside that jurisdiction?

    Don’t forget the way that F.W.A. sat on the Craig Thomson matter for years in order to protect their crooked A.L.P. colleagues, until the evidence all “disappeared” or the matters were statute-barred.

  2. Dan

    The cae is fairly straight forward. If Fair Work find against Ashby, then it will be the end of the organisation.

  3. Tel

    Slipper merely has to show he treated everyone with the same level of respect he treated Ashby. I doubt there was any discrimination involved.

  4. Chez

    No matter what the outcome, Slipper will still be a self-serving scumbag, Roxon an unprofessional AG for her interference and Gillard as untrustworthy as ever!

  5. Biota

    Slipper merely has to show he treated everyone with the same level of disrespect he treated Ashby

    Fixed

  6. val majkus

    Anyone would know more about this legislation than I do

    I accept Ashby’s other action was not dismissed only ‘permanently stayed’

    and now he’s appealing the ‘abuse of process’ stay

    So …. interesting – but really can the appeal and this action proceed at the same time?

  7. Chris

    I am not quite sure why James Ashby did not use this route to begin with. And it will be very ironic if he were to win the case, using Labor’s own laws.

    Because the process would have been too slow? They wanted to use the court process to make a public documents and make criminal allegations (which were later withdrawn) that otherwise they would have not been able to if FWA sent them to arbitration first.

  8. Cato the Elder

    Sure, 2 different causes of action arising out of the same events. But he can’t be “compensated” twice.

    Alternatively, he may be instituting proceedings now to avoid a time limit expiring while he waits for the appeal (I also know bugger all about the jurisdiction so I couldn’t say)

  9. Cato the Elder

    Sorry, that was for Val

  10. Chris M

    Under the ‘right not to be offended’ laws couldn’t Ashby claim that he was offended by salty Pete’s mussel lips comment for example?

  11. H B Bear

    I’m more interested in what the Full Federal Court has to say on the appeal from Rares J (if it gets that far).

    Would be nice to see Nanny Roxon hoist by her own Kangaroo Court too though!

  12. one old bruce

    Mates, toadies etc are a worry of course.

    But the emerging US-style polarisation with its groupthink assumptions is perhaps a greater general threat to justice.

    I once had the great pleasure to meet Robert Bork and his wife. He told me about his astonishment as he got closer and closer to the top of the US legal establishment to discover that so much of the legal thinking there was explicitly politicised: “It’s as if you wanted all your life to be a top astronomer, only to find that many of the top astronomers in fact practise astrology”.’

  13. one old bruce

    Click ‘I’ for quote source, sorry the link’s so tiny.

  14. Alfonso

    Fair Work is a stacked Labor Union puppet tribunal, that’s a design feature not a bug.
    From there to the “correct” Magistrate / Judge and Pete’s home for a late snack.
    Easy peecy.

  15. cohenite

    So Ashby is reinvigorating his sexual harrassment case against slippery slipper in the FWC and appealing Rares’ judgement.

    Sexual harrassment is based on an objective standard; the personal qualities of the complainant, their capacity to deal with the alleged harrassment, or indeed the complainant’s motivation is irrelevant to whether there was sexual harrassment.

    The FWC will keep Ashby’s action bubbling along until the appeal is heard, at which time, if successful, it will continue the conduct of the claim away from the FWC.

    I have to say though, Ashby is a shocker and Brough should not have let himself get involved in this.

  16. Ashby should be demanding that Slipper show him the same level of respect that Slipper was demanding for himself.

  17. candy

    Seems to me James Ashby is a confused person and not sure where he’s going with all this. I don’t see him as malicious though.

  18. Rodney

    This is wonderful. If I transfer an employee with a disability to a different job on OH&S grounds, I am automatically guilty of discrimination on grounds of disability.

  19. Winnedge

    If Ashby is unable to prosecute his case because a judge claimed it was politically motivated, does this not set a precedent that just about anyone working in any political environment will not be able to take anyone to task for sexual harassment?

    Ashby worked for a Politician therefore he was obviously surrounded by people who were involved in Politics – How can a Judge claim the court case was politically motivated when surely it is the personal experience of Ashby that matters?

    But then again, I am just a simple citizen who used to think that the legal system was about justice and common sense

  20. gnome

    Scumbags the lot of them. but Ashby can now prove to all Australia that the courts are about justice and Fairwork Australia is about something altogether different.

    (Don’t ask me what, I’m just a real gnome and real gnomes avoid getting involved in all that stuff anyway.)

  21. Jannie

    I cant help feeling its all just a bit too tacky. And I am very uncomfortable with my side supporting a sexual harrassment case, allowed by stupid laws empowering social control freaks. In whatever forum. This is just ugly, and those stupid laws create perverse situations which we should not exploit.

    Lets deal with the multitude of real economic problems this Gov gives us, and win on that.

    And abolish these stupid laws when we get a hope.

    I drink to freedom, liberty, tonight.

  22. The Old and Unimproved Dave

    So how does Julia get her one-seat-majority out of this one?

    “Exit stage left, repealin’ all the way…”

  23. Pickles

    Excellent news. This matter needs at least another million thrown at it. What price a mans reputation?

  24. ar

    Some of Pete Slipper’s best nights are ones where he doesn’t sleep…

  25. Viva

    How many years are you prepared to wait James?

    Revenge may be best served cold but you will be snacking on a mouthful of permafrost.

  26. Grey

    “The games continue.”
    That’s the problem with this, it is just a game.
    Peter Slipper was his manager, but not his employer. Ashby has already settled with his employer – despite the fact he made absolutely no effort to use any conciliatory or human resources offices of the Commonwealth government. There is no case for Fair Work Australia to hear, this is just trying to wring a few more drops of publicity.

    In any other circumstances would you have thought James Ashby acted appropriately? Suppose his boss had been some middle level manager in a Commonwealth department, do you think leaping straight to the Federal Court is an appropriate use of court resources or any compensation awarded an appropriate use of taxpayers funds? And if you say no, but I think the politics is great – do you really want to set a precedent that character assassination is the way we want our political issues decided in future? Show me the middle-age male MP that couldn’t be destroyed if you stuck a well endowed 20 year old in his offices with instructions to entrap.

    This is just ugly all round and particularly ugly as this is not the first time Mal Brough has used ambitious political staffers to make lurid sexual allegations to the media for his personal political advantage. One wonders if he hopes to get the leadership of the Liberal Party by this method, that will be interesting.

  27. .

    There is no case for Fair Work Australia to hear, this is just trying to wring a few more drops of publicity.

    So a manager cannot be liable on their own?

    Please state the caselaw or relevant clause of the legislation.

    In any other circumstances would you have thought James Ashby acted appropriately?

    What other circumstances?

    Suppose his boss had been some middle level manager in a Commonwealth department, do you think leaping straight to the Federal Court is an appropriate use of court resources or any compensation awarded an appropriate use of taxpayers funds?

    Why wouldn’t it be? If the law is trivial, repeal the law. If you don’t have enough money to run a court system, cut some of the more wasteful spending, like the RET, car industry subsidies or recent SES band APS bonuses.

    And if you say no, but I think the politics is great – do you really want to set a precedent that character assassination is the way we want our political issues decided in future?

    Do you want a precedent where no one with an ulterior motive cannot take a cause of action?

    Show me the middle-age male MP that couldn’t be destroyed if you stuck a well endowed 20 year old in his offices with instructions to entrap.

    The other 225 Federal MPs.

    This is just ugly all round and particularly ugly as this is not the first time Mal Brough has used ambitious political staffers to make lurid sexual allegations to the media for his personal political advantage.

    Please cite some previous instances.

    One wonders if he hopes to get the leadership of the Liberal Party by this method, that will be interesting.

    Except he won’t. It wouldn’t even work in the ALP, only on loopy old Pete Fr Slipper.

  28. candy

    “do you really want to set a precedent that character assassination is the way we want our political issues decided in future?”

    well, Ms Gillard, W.Swan and A. Albanease have been doing their hardest to assassinate Tony Abbott’s character for the last six months.

  29. Grey

    “The other 225 Federal MPs. ”
    All right I grant you Chris Pyne to be an exception, but never underestimate the ability of the paunchy bald middle-age male to make a fool of himself.
    “Please cite some previous instances.”
    Greg Andrews. True that is only two times that I am aware of. But it is 2 times more than any other politician. If the other 225 MPs and Senators can get by without using this tactic, why can’t Brough?

    “So a manager cannot be liable on their own?”
    Doubtless, just not under clause 351(1), since Slipper is not his employer. Ashby, I repeat, has already settled with his employer and I suspect that is the grounds on which Fair Work Australia will decline to involve itself further.

  30. Grey

    “well, Ms Gillard, W.Swan and A. Albanease have been doing their hardest to assassinate Tony Abbott’s character for the last six months.”

    If you refer to the almost certainly fictional punch against the wall, I agree 100%. But isn’t that the problem? Once one side starts doing, the other sides says oh well its OK – and we are all the losers.
    If you mean the general misogyny stuff, that’s all the usual hoopla of politics. Generally the only people who swallow it are the people who already in the tank anyway.

  31. candy

    “If you mean the general misogyny stuff, that’s all the usual hoopla of politics. Generally the only people who swallow it are the people who already in the tank anyway.”

    I must disagree there, Grey. W. Swan has called Mr Abbott a “thug” in parliament and Ms Gillard labelled him a who who hates his wife and daughters.

    There’s not a lot lower they can go with their character assassination.

  32. Grey

    Candy, I am not an utopian, I don’t want to try and stop politicians saying stupid things to each other across the house.
    Julia Gillard called Tony Abbott a misogynist – she can try and justify that from the existing record and we can judge her accordingly
    Tony Abbott called Julia Gillard a criminal – likewise.
    But surely a halt can be called on the politics of personal destruction?

  33. .

    I want policies and issues debated.

    However, Gillard doesn’t want this because her policies are a joke. The live export thing – set up as a fake, etc. The supertrawler went against evidence. Swan chose 4 of 128 recommendations in the Henry review and botched every single one of them.

    I despise the visceral nature of US politics, and politics is becoming like that here. The Obama/Romney rivalry was actually tame compared to the Gore/Kerry/Bush years.

    I think Gillard should be pursued because I think there is a mountain of evidence against her.

    She evaded her taxes on the Melbourne house and then had the temerity to lie about tax policy and slap a consumption tax on everyone.

  34. Judith Sloan

    I am not sure you are right, Grey. The Commonwealth settled with Ashby under another statute, WHS Act, for failing to proviide a safe working place.

    This action under the FWA may also rope in the Commonwealth.

  35. Jazza

    As Ive asked before: Where and how do i donate to Ashby’s costs?

  36. Steve of Ferny Hills

    Grey, don’t confuse the truth with something that ‘Foxtail’ Atkins claimed on Insiders. What Tony Abbott really said:

    “It demonstrates that she misled the West Australian Corporate Affairs Commission and that is a very serious matter,” Mr Abbott said this morning.
    “That would appear to be in breach of the law. So this is a very serious matter and it is something that the Prime Minister has been stonewalling on for weeks, both outside the Parliament and this week inside the Parliament.”

  37. candy

    “But surely a halt can be called on the politics of personal destruction?”

    Too late – Ms Gillard and w. swan have brought on the misogny and thug allegations, they’re stuck with it all now.

    Blind freddie can see Ms Gillard was a shonky lawyer who lost her marbles over the married lover, but the tracks are well covered.

  38. Winnedge

    The Politics of personal destruction started when the ALP decided their only strategy was to destroy the reputation of Tony Abbott. He has been vilified constantly from just about every Minister and blamed for everything from the boat arrival numbers to destroying the economy! (And lets not forget the appalling Australia Day riot)

    So if one person feels he has been sexually harassed it is his right to pursue it.

    In my early days i was severely harassed and I can say it is a very unpleasant situation to be in, especially if you are trying to have a career. So if Ashby felt that way he is perfectly entitled to protest and if Slipper was stupid enough to send texts like that deserves to be in trouble. I am pretty certain that Ashby’s solicitors wouldn’t have taken this on if they weren’t confident of the outcome.

    Roxon has been a disgrace all along and it is she who politicised the situation with her interference, conveniently forgetting she was the AG, and acting on behalf of the Party.

  39. Grey

    @Steve – Abbott didn’t call Gillard a criminal? I am sure he thinks it.
    @Judith Sloan. Well we will see, I don’t think the law encourages double-dipping. Just don’t cry foul if the FWA doesn’t want a bar of it. If he has a claim against Peter Slipper personally it would have to be a personal injury type claim.

    I suppose this is all because the Coalition hoped with just one by-election they could gain the government benches? Had they ever thought that with just a few spoonfuls of honey they could have got what they wanted? Andrew Wilkie for a long time was put in a terrible position regarding hospital funding in Tasmania and just promising not to run a candidate against Rob Oakshott might have been all it took for a switcheroo. Still, if Tony Abbott had been smarter we wouldn’t have got carbon pricing. So it is all to the good

  40. Gab

    Abbott didn’t call Gillard a criminal? I am sure he thinks it.

    Ah, another mind reader. Yeah, just slag off at Abbott becuase you think you know what he thinks.

  41. .

    Still, if Tony Abbott had been smarter we wouldn’t have got carbon pricing.

    Explain how.

    and just promising not to run a candidate against Rob Oakshott might have been all it took for a switcheroo

    Is that even legal?

  42. Grey

    @Gab, I have no idea what Abbott thinks, I was just making the assumption he wasn’t an idiot.

    Legality? I have no idea, but I guess a party can chose not to run a candidate in an electorate whenever it wishes.

  43. Gab

    Now you say:

    I have no idea what Abbott thinks,

    But earlier…

    I am sure he thinks it.

    You’re not very bright. 笨天生的一堆肉。

  44. jupes

    Abbott didn’t call Gillard a criminal? I am sure he thinks it.

    Dunno about Abbott, but I certainly do.

    Who do you reckon was the ‘brains’ of the AWU-WSA Grey – Gillard, Wilson or Blewitt?

    Let’s look at where they are now shall we…

  45. Grey

    “You’re not very bright”

    We all have our little failings. Possibly Abbott is an idiot. He is certainly rather maladroit politically for not being able to prevent the Gillard Government going its full term.

  46. Gab

    He is certainly rather maladroit politically for not being able to prevent the Gillard Government going its full term.

    Really? And how do you propose he do that?

  47. Grey

    Jupes – I think she would have equally shared in the profits, but presumably Bruce Wilson and his brother-in-law would have been the ones aware there was a big pot of WA state government money they could get their hands on – that part needed local knowledge.

    Still, she was young and naive and she hasn’t been pocketing any money since. I say let bygones be bygones.

  48. jupes

    Still, she was young and naive and she hasn’t been pocketing any money since.

    Yea well that’s because it went tits up in 1995.

    I say let bygones be bygones.

    Of course you do.

  49. .

    Legality? I have no idea, but I guess a party can chose not to run a candidate in an electorate whenever it wishes.

    Yeah. But you know how the fair work act works. Whatever.

  50. Grey

    @Jupes – its Christmas after all.
    She had a HECS debt to pay off and you know how hard it is to get established in the Melbourne property market. These days its a wonder every first home buyer doesn’t hold up a bank or something.

  51. Gab

    How about you answer my question, hare-brained one?

  52. Pickles

    That’s the spirit Jazza. It is a good idea for those on this end of the paddock to specifically target matters of interest. The day after the news broke about Quadrants funding cuts got a letter from them about it and asking for cash. Was happy to. Hope they get a bagful. Then they can put on $25k worth of social events with the shitty government money just out of spite.

  53. Grey

    @Gab
    The numbers were pretty simple. I am assuming Adam Bandt and Tony Windsor would rather drink poison than make a deal with Tony Abbott. That left Andrew Wilkie annoyed about pokies and for a long time very exposed on health funding and Rob Oakshott facing a future where no-one will listen to his essentially harmless and well-meaning monologues. Penning a few sonnets, a few chords on the guitar beneath their windows during the hot summer nights – how hard could have been?

  54. Gab

    I was right about, you Grey. You are thick.

  55. jupes

    …how hard could have been?

    Penning a sonnet to Oakeshott?!?

    Some people have pride.

  56. Gab

    And some people – like Abbott – have principles.

  57. Grey

    Pride and principles, the two defining characteristics of Australia’s greatest opposition leader.

    Certainly better than Brendan Nelson, Alexander Downer, John Hewson, Andrew Peacock, Bill Hayden, Herbert Evatt or Arthur Calwell, although I think Matthew Charlton has been unfairly neglected by history.

  58. Grey

    Lets hope Craig Thomson doesn’t end up being cleared or Tony ‘The Gazelle’ Abbott is really going to end up looking sick.

  59. jupes

    Pride and principles, the two defining characteristics of Australia’s greatest opposition leader.

    As opposed to the defining characteristics or Australia’s worst ever Prime Minister – best described by Alice Cooper:

    Well we got no class
    And we got no principles
    And we got no innocence

  60. Gab

    Tony ‘The Gazelle’ Abbott

    Yes and why did he sprint out of the House? Because he held to his principles. Something lefties like you do not comprehend. You and your lot only know how to snark. No substance, just snark.

  61. jupes

    Lets hope Craig Thomson doesn’t end up being cleared…

    Cleared by the legal profession is one thing – truth isn’t a defining characteristic of the law.

    Still having full confidence in the member for Dobell is another.

    Unlike you, the average punter isn’t gullible enough to believe a not guilty verdict on Thomo.

  62. .

    I saw an Essential or Roy Morgan poll that said Australians had a reasonable doubt about Thommo.

    The doppleganger thief story was plausible, they said.

  63. Grey

    “Unlike you, the average punter isn’t gullible enough to believe a not guilty verdict on Thomo.”

    Oh well, I am sure you are right. But what if Kathy Jackson were to be shown as having been a little too creative in her methods of evidence gathering?

    A purely hypothetical question, you understand. But you mustn’t think ALP affiliated unions play by the Queensberry rules you are used to in your Country Clubs.

  64. jupes

    I saw an Essential or Roy Morgan poll that said Australians had a reasonable doubt about Thommo.

    Struth! Maybe the average punter is a gullible fool. Either that or they have only seen the shallow coverage on commercial TV on the issue.

    Then again, I have never met one. Not one. Even Labor supporters have a reasonable doubt about Thomo. Otherwise, why did they suspend him from the party?

  65. .

    Oh well, I am sure you are right. But what if Kathy Jackson were to be shown as having been a little too creative in her methods of evidence gathering?

    Is that what the death threat was about?

    I would like to know more.

  66. jupes

    But what if Kathy Jackson were to be shown as having been a little too creative in her methods of evidence gathering?

    Oh. So Thomo’s credit card wasn’t used to withdraw over $100,000 in cash? And it wasn’t used to hire whores? Well there’s a scoop Grey. I thought they were findings of FWA (after a three year investigation).

    Now I find out it was all made up by Cathy Jackson. Who knew?

  67. Grey is interesting. He sounds like one of the regular trolls, but stupider.

  68. 2dogs

    “and just promising not to run a candidate against Rob Oakshott [sic] might have been all it took for a switcheroo

    Is that even legal?”

    This would constitute bribery under setcion 141.1 of the Criminal Code (Cth) 1995.

    On this matter, I never understood why Oakeshott did not pursue his purple cabinet idea in 2010. Although it was publicly ridiculed at the time, if he kept to his guns and demanded the PMship he could have gained a great deal relative to where he is now:

    1. if he got turfed out at the next election, he would have a had a much larger parliamentary pension; and,

    2. the result would not have been seen as a betrayal by the people of Lyne. Everyone else in the country may have hated him for it, but he wouldn’t actually be accountable to them.

  69. Grey

    Yes quite right about Rob OakEshott, [memo to self if I ever decide to create a fake credit card with his name on it]
    “This would constitute bribery under setcion 141.1 of the Criminal Code (Cth) 1995.”
    Nonsense, its just a variant of pork-barreling – think Vince Gair and the Night of the Long Prawns. Of course I expect I am now going to hear how Tony Abbott is far too principled to ever pork [PAID PARENTAL SCHEME] barrel

  70. candy

    “Of course I expect I am now going to hear how Tony Abbott is far too principled to ever pork [PAID PARENTAL SCHEME] barrel”

    of course not, Mr Abbott is too handsome, too fit and too honest for any of your nonsense, Mr Grey!

  71. Grey

    Before I go to sleep I usually like to unwind by reading some of the speeches of Senator Fierravanti-Wells before dozing off. Something I can highly recommend if you like high quality political oratory. I was struck by this speech of 18 September:

    One wonders why the Australian Labor Party and in particular senior ministers, such as Minister Albanese, appear to be rehabilitating Mr Thomson. We saw Mr Thomson recently at the opening of the GP superclinic at Woongarrah, which indeed has given Mr Thomson a fair share of headaches. I would remind the Senate that this is the GP superclinic that was promised quite a number of years ago. It has taken years and lots of heartache to provide a GP superclinic on the Central Coast…..Of course, in the debacle that has become the legislation pertaining to the super trawler we even saw Mr Thomson putting forward amendments to the shambolic fishing legislation in the House of Representatives last week. I am sure that many scratched their heads and wondered why Mr Thomson had suddenly taken an interest in fishing. But it is perhaps not surprising to some of us, given his extensive knowledge of fishnets acquired no doubt in his trawling through many less than salubrious establishments around the country….. Of course, this is all part of the Australian Labor Party still keeping Mr Thomson in the tent. It is also clear that the Australian Labor Party is seeking to delay the preselection in Dobell. My understanding is that the preselection was to have been held in September but that it has now been delayed until next year. And so what we are seeing with Minister Albanese’s visit is that the ALP still needs Mr Thomson and his vote.

    Despite the move to the crossbench, the protection racket is still in operation. One would assume that there would be little chance that Mr Thomson would be re-endorsed—or would he? So I asked myself: what is all this about? Is the ALP stringing Mr Thomson along with the carrot of potentially re-endorsing him at a preselection at some stage in the future?

    The are few sharper political minds than Senator F-W,I wonder what she has heard?

  72. Honesty

    Thompson admitted that he approved the expense for a brothel. I can’t understand why Grey would think that is acceptable use of HSU funds, I guess either stupidity or ALP indoctrination from an early age.

  73. jupes

    Despite the move to the crossbench, the protection racket is still in operation.

    Could it be that Thomo has the names of a few of his fellow brothel creepers?

    Hey hey. We can only hope.

  74. Grey

    “Thompson admitted that he approved the expense for a brothel”

    Did he? Oh well, I am sure you are right. Maybe he just said that a committee which he was a member approved his credit card statements. To those without legal training that might appear to be the same thing.

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