An employment contract is not slavery

Christian Porter in The Australian:

Most Australians perhaps think that businesses have gone, large businesses in particular, a little bit too far in telling them how to live their lives and what they can and can’t say in their spare time as part of their employment contract — and particularly for people who would otherwise be prevented from making what aren’t much more than statements of scripture or doctrine or belief on Facebook.

This is the context of the proposed draft religious discrimination bill. What is causing excitement is:

… the so-called Folau clause in the draft bill, which prevents companies with annual turnovers of at least $50 million from sacking employees for sharing controversial religious views outside work unless they can prove it was necessary to avoid undesirable financial hardship.

The government’s position here is entirely sensible.  The claim being that organisations have to manage their reputations/brand image etc. and that this requires them to restrain what their employees can and cannot do. That sounds very plausible. Yet now the government is saying, “Okay – prove it” and employer groups are jumping up and down.

The Australian Industry Group has previously said the provision was “unfair and unworkable” and would create significant confusion about which categories of out-of-hours conduct employers can legitimately address in order to manage their business.

Yes. Well. Hard to feel any sympathy.  When common sense solutions are excluded by pig-headedness then solutions are imposed. This whole dobbing-you-into-your-employer-because-we-don’t-like-what-you-say-or-think has gone too far.

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104 Responses to An employment contract is not slavery

  1. Roger

    The Australian Industry Group has previously said the provision was “unfair and unworkable” and would create significant confusion about which categories of out-of-hours conduct employers can legitimately address in order to manage their business.

    How about this:

    If your employee isn’t slagging off your business on social media or advocating/doing anything illegal that might bring disrepute and subsequent financial loss upon your business then it’s none of your business what they get up to in their own time?

  2. 2dogs

    Given that there is a minimum wage, if an employee is being told how to behave 168 hours per week, shouldn’t they be paid for 168 hours per week?

  3. Roger

    Given that there is a minimum wage, if an employee is being told how to behave 168 hours per week, shouldn’t they be paid for 168 hours per week?

    What say ye, Innes Willox?

  4. jupes

    Bottom line is that it isn’t mandatory to like homosexuality.

    Or is it?

    It now appears mandatory in many organisations to “respect” Aboriginal elders “past, present and emerging”.

  5. Tel

    From my perspective it’s more important that any provisions are clear and imposed in a very even handed manner. For example, Folau got sacked for saying something that supposedly was “anti-gay” but this is only a matter of opinion, and anyway plenty of people were saying things that were just as much “anti-Christian” but no one batted an eyelid over that.

    If you read the “Code of Conduct” it applies to:
    * All forms of speech that might be discriminatory of non-inclusive.
    * All the players.
    * All the executives.
    * All the fans and anyone with tickets.

    But it wasn’t ENFORCED against all of those people, it was ONLY enforced against Folau. My preference would be that any provision that is vague gets automatically ruled as not really part of the agreement and ignored by all courts … and any provision showing signs of hypocrisy and/or selective enforcement must be regarded as vague because clearly they can’t make up their mind as to how it applies.

    This whole dobbing-you-into-your-employer-because-we-don’t-like-what-you-say-or-think has gone too far.

    It has, but consider the driving factors behind this: there are a group of political activists who don’t have jobs, don’t run a business, never will be gainfully employed and live their lives as noisy ratbags. The fundamental problem is that such a lifestyle does actually work in most Western countries.

    Finally, specifically in the Folau case, I’m pretty sure that Rugby Australia is a nationwide monopoly with some special government funding and therefore should be held to a much higher standard than your average corner shop. What you actually find is the opposite … the corner shop that attempted to (for example) have a “Code of Conduct” preventing a Trans person from dressing in certain ways (e.g. a biological male being instructed to dress like a male) would be very quickly shut down and put out of business by Fair Work Australia. That would happen regardless of whether the shop only requested this during normal business hours and happily allowed the same employee to do whatever after work.

    We don’t really have a system of contracts at work here … we have certain groups of people who happen to have political power at the moment and are leveraging that.

  6. stackja

    AIG was MIA on Work Choice and Qantas busy virtue signalling.
    Payroll software seems mostly useless.

  7. stackja

    Some people have ‘rights’ and others don’t.

  8. 2dogs

    Consider, for a moment, a person with two part time jobs. What if the out-of-hours obligations of these two employers conflict?

  9. BorisG

    One has to ask if the matter of Sinc running this at times highly controversial blog in his own name has come up in discussion with his employer,

    Empirical evidence suggests that his employer has been very tolerant. Good for them – and for him.

  10. This seems unnecessary; isn’t it likely that the ARU’s actions were prima facie contractually invalid and Folau will win his case?

  11. Roger

    This seems unnecessary; isn’t it likely that the ARU’s actions were prima facie contractually invalid and Folau will win his case?

    This is not just about Folau.

  12. John Constantine

    Once chicom artificial intelligence software robots are purchased by the yarragrad occupying quislings regime to hunt down hatespeech on the internet, everything ever posted by a Victorian on the cat will be doxed and judged for their social credit rating.

    The New safe internet means if you have nothing to hide, you have nothing to fear.

    I have always loved Big brother.

  13. … the so-called Folau clause in the draft bill, which prevents companies with annual turnovers of at least $50 million from sacking employees for sharing controversial religious views outside work unless they can prove it was necessary to avoid undesirable financial hardship.

    What if people WANT to sign up to such awful conditions?

  14. Jupes:

    Bottom line is that it isn’t mandatory to like homosexuality.
    Or is it?
    It now appears mandatory in many organisations to “respect” Aboriginal elders “past, present and emerging”.

    Is it alright to just hate everybody?
    Gees, this Grumpy Old Fart stuff is easy.

  15. Jupes:
    I reread your piece on respecting “Aboriginal elders “past, present and emerging”.”
    Does that last bit mean I have to be at the birth of ‘Elder?” Can one be born ‘old’?
    Sometimes this crap gets a bit tedious…

  16. BorisG

    Hasn’t Sinc argued elsewhere that employers should be able to sack anyone for any reason or no reason?

  17. Sinclair Davidson

    One has to ask if the matter of Sinc running this at times highly controversial blog in his own name has come up in discussion with his employer.

    A complaint was made and the chair of Academic Board asked to investigate. As a consequence I was asked by Academic Board to give them a talk on academic freedom.

  18. Sinclair Davidson

    Hasn’t Sinc argued elsewhere that employers should be able to sack anyone for any reason or no reason?

    I am a fan of employment at will. It is not clear to me, however, that a prohibition on slavery would be inconsistent with that principle.

  19. Leigh Lowe

    … the so-called Folau clause in the draft bill, which prevents any employer companies with annual turnovers of at least $50 million from sacking employees for sharing controversial religious views outside work unless they can prove it was necessary to avoid undesirable financial hardship.

    Fixed.

  20. P

    Fixed.

    The power of words.

    Reminds me of this video.

  21. John Constantine

    In Victoria, Fiona patten is being used by the Andrews regime to bring in hate speech crime laws to kill off the intolerant.

    Only the federal legislation is making them wait, so they can work out how to drive tyranny through the loopholes.

    Anybody not progressing the revolutionary struggle is guilty of thoughtcrimes, and Andrews will purge them.

    Comrades.

  22. Arky

    . This whole dobbing-you-into-your-employer-because-we-don’t-like-what-you-say-or-think has gone too far.

    ..
    Who are you and what have you done with Davidson?

  23. Arky

    You’re upsetting Dot.
    I think someone should call the libertarian doctrine police.
    You have gone off the reservation.

  24. Arky

    It’s free trade, it’s freedom of association. it’s, it’s THE VIBE.

  25. Arky

    Jesus.
    Get in here Iampeter.
    You explain it.

  26. jupes

    Jupes:
    I reread your piece on respecting “Aboriginal elders “past, present and emerging”.”
    Does that last bit mean I have to be at the birth of ‘Elder?” Can one be born ‘old’?
    Sometimes this crap gets a bit tedious…

    Tell me about it.

    The past elders were the ones stealing your sheep, the present elders are the ones fleecing you through native title and the welfare system and the emerging elders are the young blokes robbing you on the train.

    Not much to respect there.

  27. John Constantine

    https://www.theage.com.au/politics/victoria/new-hate-speech-laws-will-have-to-wait-premier-20190911-p52q7a.html

    What does the Patten bill do?

    The Patten bill seeks to extend vilification protections to other attributes, namely gender, sexual orientation, gender identity, sex characteristics and disability.

    The bill also grants new powers to the VEOHRC to be able to request information from any relevant person or business to identify online “trolls” after a vilification complaint has been made.

    Such requests could require, for instance, social media companies to hand over information on individuals who engage in online abuse through “anonymous” accounts. This request only applies to existing complaints, though. It does not provide a carte blanche right for authorities to search through social media to identify offenders, and is subject to VCAT approval.

    The bill also contains appropriate confidentiality and privacy controls to prevent unreasonable disclosure of this information.

    The bill also does not change the threshold test for vilification, except that “incitement” is replaced with “likely to incite”. As such, conduct would be prohibited if it was “likely to” incite hatred, serious contempt, revulsion, or severe ridicule on the basis of the above attributes

  28. John Constantine

    Request any information after any complaint.

    The cat lurktrolls have lists and are ready for the revolution day of the purges.

    Comrades, i have always loved dan andrews.

  29. John Constantine

    I think I mentioned the shortfilth’s manboobs once, but I reckon I got away with it.

    I have always loved bill shorten.

    Comrades.

  30. BorisG

    I am a fan of employment at will. It is not clear to me, however, that a prohibition on slavery would be inconsistent with that principle.

    Not sure about slavery but an employer can sack an employee for no reason then they can sack him over a anything that happens inside or outside Working hours.

  31. Sinclair Davidson

    BorisG – if and when we live in that happy world your argument will be far more interesting.

  32. Not sure about slavery but an employer can sack an employee for no reason then they can sack him over a anything that happens inside or outside Working hours.

    I’m fine with sacking at will.
    Employees can walk off the job at will, without judicial penalty, this should work in both directions.

  33. BorisG

    BorisG – if and when we live in that happy world your argument will be far more interesting.

    Ok this answer has a lot more sense.

  34. NuThink

    Is the following statement regarded as hate speech? And if not, why not?
    “I hate hate-speech”.
    And if you are explaining what hate-speech is are you guilty of hate speech yourself, as examples would surely need to be given to distinguish between hate-speech and plain old dislike-speech. Can a computer detect the difference so that your social credit score is not permanently adversely affected.
    For example, if you say “I hate beans” it could be mistaken for saying “I hate beings”. Life ruined. No bus tickets, no train tickets, no free government handouts of OPM, no government services (a blessing in disguise) , internment instead of internet etc.

    As a consequence I was asked by Academic Board to give them a talk on academic freedom.

    Sad that they did not intrinsically know what academic freedom is.

    Pollies can say most anything under parliamentary privilege without legal consequences, can they?
    That is equality in action.

  35. I_am_not_a_robot

    It’s nothing to do with “slavery” or freedom of speech, “dobbing-you-into-your-employer-because-we-don’t-like-what-you-say-or-think”, or “liking homosexuality” or religion bigots for that matter.
    As an aside, what is unconscionable or oppressive about: ‘treating everyone equally, fairly with dignity regardless of gender or gender identity, sexual orientation, ethnicity, culture or religious background, age or disability …’ etc., in fact those sentiments would seem to be a cornerstone of the Christian ethic, but I’m no expert.
    Whatever; the Folau kerfuffle is about a contract entered into by a presumably competent and informed adult, the rule of Law and so on, it should and will be settled by a court, the State should butt-out.

  36. struth

    Blah blah blah.

    The government should be involved in none of this.
    We have laws against defamation and last time I looked every business is owned by a human/s
    There are contracts that are valid once signed .
    WTF is the government doing stepping in….?

    (4 dots and a question mark, couldn’t help myself)

  37. Iampeter

    I am a fan of employment at will. It is not clear to me, however, that a prohibition on slavery would be inconsistent with that principle.

    If we don’t have the ability to hire and fire as we please then we are already supporting slavery to some extent.

    BorisG – if and when we live in that happy world your argument will be far more interesting.

    But how are we ever going to live in that happy world if no one, certainly no conservatives or libertarians, can even make the case for businesses to be able to hire and fire for any reason?

  38. Juan

    Hasn’t Sinc argued elsewhere that employers should be able to sack anyone for any reason or no reason?

    I am a fan of employment at will. It is not clear to me, however, that a prohibition on slavery would be inconsistent with that principle.

    “Employment at will,” assumes the right of either side to terminate the contract with notice, or without notice.

    A slavery arrangement is missing this crucial detail.

  39. Iampeter

    WTF is the government doing stepping in….?

    Um…because conservative leftist SJW’s called for the government to step in when Folau was sacked.

    Even on this very blog.

  40. Iampeter

    And here’s another example.

    These are the kinds of laws today’s conservatives and libertarians seem to want pretty badly.

  41. Mother Lode

    The belief that a few emails from Franks at seven Jones is a ground swell of bad press the voice of outrage from an affronted market place.

    They think they are managing a bad situation, but the setting themselves up for the next one since they have revealed that they will fall for it.

    They have new sense of what ordinary people think or feel, neither of what they can bear to hear, or of what they consider the bounds of civilised discourse. What Folau said was in fact a commonplace sentiment. Not shared by all, but everyone is familiar with it. Everyone knew he was advocating no violence or harm – because we know people who feel like this and recognise what he is asking. Everyone but the reflexively outraged Gaystapo got it.

  42. Mother Lode

    OmPoida has ruminated long and hard on this and, having also mopped up the mess afterwards, has divined that we are all a bunch of deluded leftists, and that there is only one person on the Right here and that just happens to be him.

    This, of course, can be applied to every one of his comments.

  43. Pyrmonter

    The simple fact an employer has included a provision in an employment contract imposing restrictions on conduct outside the employment is evidence that that conduct matters to it. Why should it be required to go further and bear the onus of showing that in each application of a general principle it has satisfied some ‘serious harm’ test? It might well take the view that it needs to have a uniform policy across all employees: such would be fair. But then … how does an employer with ‘star’ employees (sportsmen, ‘star traders’, media talent) justify applying that same rules to the cleaners, clerks and receptionists?

    In a competitive labour market, where is the ‘imbalance in power’ that justifies interfering in the bargains freely struck between master and servant?

  44. Mark A

    Mother Lode
    #3189628, posted on October 21, 2019 at 8:22 am

    OmPoida has ruminated long and hard on this and, having also mopped up the mess afterwards, has divined that we are all a bunch of deluded leftists, and that there is only one person on the Right here and that just happens to be him.

    This, of course, can be applied to every one of his comments.

    Yes it’s a recurring theme, I asked him/her some time ago to explain what he means by “you lot do not understand politics”, but never received an answer.

    Now it may be that I’m beneath his attention of course, but he could at least explain this to others.

  45. John Bayley

    It does not provide a carte blanche right for authorities to search through social media to identify offenders, and is subject to VCAT approval.

    Phew…for a while there I was worried that they could actually go on wild goose chases at will.
    Carry on then; all good.
    /s

  46. Mother Lode

    The belief that a few emails from Franks at seven Jones is a ground swell of bad press the voice of outrage from an affronted market place.

    Freakin’ Auto-corrupt!

    Cranks from Sleeping Giants…

  47. Iampeter

    OmPoida has ruminated long and hard on this and, having also mopped up the mess afterwards, has divined that we are all a bunch of deluded leftists, and that there is only one person on the Right here and that just happens to be him.

    This, of course, can be applied to every one of his comments.

    Pretty much. But I wouldn’t say you are merely very deluded leftists, you are also very unprincipled too.
    There’s no doubt you would all be arguing the exact opposite position if only Folau had come out as gender fluid and it was Christians complaining that got him fired.

    Yes it’s a recurring theme, I asked him/her some time ago to explain what he means by “you lot do not understand politics”, but never received an answer.

    That’s not true. I’ve explained this so frequently that you can just copy paste. You guys pretty vehemently don’t want to hear it.

    But in short, if I have to explain why you are a leftist if you don’t support RA’s right to fire Folau for any reason, then you obviously do not know anything about politics.

  48. Ellen

    Jupes, the elders were the ones stealing your sheep because you stole their land to put your sheep on it. They are not fleecing you through native title, they are just getting a bit of their own land back, usually the bits you aren’t using. If you’ve been making money out of the land, basically the native title is extinguished in your favour.

  49. Pyrmonter

    @ Mother, @ Lode

    I disagree with Iamp quite frequently; but it isn’t necessary to quite so personal. There are worthwhile things to be said on each side of this argument; if the Cat can’t be a place for civil exchanges of views, it loses its purpose.

  50. Sinclair Davidson

    Pyrmonter – You’re point comes back to BorisG’s argument above.

    The fact is – we don’t have a competitive labour market and nobody is talking about creating such a thing.

    Also we know that government simply do not mindlessly enforce contracts. Nor should they.

  51. Mother Lode

    Ummm, pyrmontrr, that is the point he makes repeatedly.

  52. Pyrmonter

    @ Sinc

    There are two rugby football games (with some brand differentiation by class and ethnicity); dozens of clubs, and the opportunity for players to play abroad. Taking Folau as an example (I’m sure most on the thread have it in forefront of mind), was he really left without a choice?

    I thought RA’s actions a possible over-reaction, and effectivel walking into a trap laid by Folau. But agasint that, note that, at least on RA’s case, Folau had agreed to the terms he almost unarguably breached.

  53. Sinclair Davidson

    Let me throw back at you – is it appropriate that an employer can prohibit by contract the public display of religion?

  54. Diogenes

    was he really left without a choice?

    Most emphatically yes.
    2 codes & many clubs yes but …. RA had deregistered him, which meant he could NOT play for any RU club in the nation. Then the ARL effectively pre-emptively did the same.

    ARU & ARL have massive influence in the international bodies governing the sports, and as we saw the ARU supported a ‘coup’ which saw the official Tongan RU sidelined in favour of another, because they selected Folau to play, therefore no international option either.

    As for what he agreed to , have you seen his contract ?

  55. Roger

    Taking Folau as an example (I’m sure most on the thread have it in forefront of mind), was he really left without a choice?

    He attempted to play rugby league for Tonga but the local administrators Beattie & Greenberg went to the International Rugby League Federation and had him banned.

    Whether one agrees or disagrees with his views and the manne in which he has expressed them, what has been done to Folau by the administrators of both rugby union and rugby league – with an eye on corporate sponsors – is a grievous injuustice with implications that extend far beyond his case.

  56. Roger

    Correction – international rugby league authorities banned the whole Tongan side!

  57. Tim Neilson

    The simple fact an employer has included a provision in an employment contract imposing restrictions on conduct outside the employment is evidence that that conduct matters to it.

    “Matters to it” in what sense?

    Let’s imagine a purely hypothetical airline with a purely hypothetical CEO who has a personal interest in some woke issue.

    Must we assume that because the woke CEO pushes the woke issue that pushing the woke issue must of necessity be in the interests of the airline business?

    Or might we have an open mind as to whether the CEO’s wokeness had clouded his judgement and caused him to use his position for his own objectives rather than for the interests of the airline?

    Obviously such a thing has never happened, but in theory it might, wouldn’t you say?

  58. Pyrmonter

    @ Tim

    What we must do is respect the rights of the corporators to determine their own systems of corporate governance, including the selection of the CEO. Provided the market is competitive, what business is it of anyone else whether the CEO pushes woke issues, pushes Alt-Right issues, or presses for David Icke’s conspiracies?

  59. Pyrmonter

    @ Sinc

    Yes.

    And if the religious bodies insist there is to be ‘religious freedom’, they need to accept freedom to be irreligious. If the religious bodies themselves wish to discriminate against the irrelgious, they can only expect that turnabout should be allowed as well: if St Gwinnodock’s wants the right to sack queers because of ‘religious ethics’, it’s hardly reasonable to expect the Star Observer to be required to employ Mormons.

    I was inclined to think the government’s religious stuff was a workable, muddle along compromise; as time passes, and the various identitarian quarters agree that it won’t work, I’m less sure.

  60. Iampeter

    Let me throw back at you – is it appropriate that an employer can prohibit by contract the public display of religion?

    Yes. You could also have contracts limiting all sorts of things you do in public, from eating, drinking, wearing and even who you can work with in the future.
    If you’re being paid millions to be a brand ambassador for Coke and Adidas, don’t constantly get caught in public drinking Pepsi and wearing Nike.

    But this is disingenuous. The issue here has never been about any religious displays.
    If he was an atheist that said something politically incorrect, that eventually led to his sacking after countless chances and requests to stop, none of the people crying over Folau would be making a peep.

    Nor is Folau alleging a breach of contract since he has taken RA to FW, which is like taking someone to the HRC.

    This entire issue has been nothing more than religious conservatives shamefully proving they are no different to leftist SJW’s, playing the victim card and demanding special privilege for their collective.

    And doing so very successfully given the fact that these appalling leftist laws are now being tabled.

    This issue has thoroughly illustrated how shallow conservative pretence to stand for things like free speech and property rights really is.

  61. John A

    Pyrmonter #3189813, posted on October 21, 2019 at 1:07 pm

    @ Tim

    What we must do is respect the rights of the corporators to determine their own systems of corporate governance, including the selection of the CEO. Provided the market is competitive, what business is it of anyone else whether the CEO pushes woke issues, pushes Alt-Right issues, or presses for David Icke’s conspiracies?

    Fine in theory, but if the woke issue is not germaine to the business objectives of the employer, does said CEO have the right to divert company time and money to his personal pursuits (outside the terms of his engagement contract)? For example by applying what appears to be a secondary boycott to an organisation which receives its sponsorship money and thus risking the company being prosecuted?

  62. Sinclair Davidson

    If he was an atheist that said something politically incorrect, that eventually led to his sacking after countless chances and requests to stop, none of the people crying over Folau would be making a peep.

    Yes – I get that. But we are also (most of us anyway) perfectly capable of discussing the principle at hand.

    religious conservatives shamefully proving they are no different to leftist SJW’s

    Yes – pathetic.

    And if the religious bodies insist there is to be ‘religious freedom’, they need to accept freedom to be irreligious.

    I think we are well past that stage.

    if St Gwinnodock’s wants the right to sack queers because of ‘religious ethics’, it’s hardly reasonable to expect the Star Observer to be required to employ Mormons.

    Well definite maybe. I’m uncomfortable with religious schools being able to sack gays. But I’m also uncomfortable with the Star Observer ((I don’t know this newspaper) not employing Mormons or whomever. How does that differ from me not wanting to employ trade unionists, or ALP voters, or only attractive young ladies, etc. etc. etc.?

  63. Des Deskperson

    ‘As for what he agreed to , have you seen his contract ?’

    That’s a key issue, isn’t it, in both the Folau case and more generally?

    There may well be case for requiring an employee to behave or not behave in a certain manner outside work if it could affect the employer’s interests.

    In Folau’s case, all we have seen as a vaguely worded, aspirational RA code of conduct that requires players not to ‘ act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit.’

    This sort of vague and subjective – for both parties -stuff is unreasonable in any employment relationship,.

  64. Bar Beach Swimmer

    There’s no doubt you would all be arguing the exact opposite position if only Folau had come out as gender fluid and it was Christians complaining that got him fired.

    I would not have and I am unaware of anyone arguing that, here.

    1) Folau was sacked for saying/posting on his own personal social media account in his own time something that was not illegal and that had nothing to do with his job. The subject of his post is well known in the community and there was no incitement to violence.
    2) It would be entirely different if his post was directly connected with his work by being about his work, undertaken while at work, on a work computer or in the employer’s time. Or if it was directly associated with the employer’s line of work, which IIRC was the reason for his cousin’s sacking from a RC School.
    3) Employers should have the right to sack employees for actions carried out at their place of work in the time of their work and about their work or place of work.
    4) Employers should not be able to “poison the employment water” for employees by attempting to ensure that the employee will never work again in their field of expertise by convincing other employers not to employee. To me this is the same as an employee deliberately and totally sabotaging their employer and their place of work. To do so, should invite investigation and, if proved, the strongest possible censure of the organisation/individual and/or penalty.
    5) Third parties should not be able to influence an employer about one of their own employees. If a crime has been committed that the third party is aware of, then the information should be presented to the police/authorities for investigation.
    6) If a person, once employed, deliberately attempted to undermine the business activities of the employer, including by posting clear, derogatory statements and claims related directly to the work of the employer, then that would be a valid reason for the employee’s termination.
    7) I’m not interested in the subject matter of the posts, it could have been as you say, about gender-fluidity in a Christian organisation.
    8) There happens to be a serious principle at stake in Folau’s case: can an employee be denied the ability to work in their field of expertise because the employer, while having no qualms about their quality of work, doesn’t like the employee’s personal views and their private/personal activities away from their work?

  65. John A

    I_am_not_a_robot #3189568, posted on October 21, 2019 at 6:34 am

    It’s nothing to do with “slavery” or freedom of speech, “dobbing-you-into-your-employer-because-we-don’t-like-what-you-say-or-think”, or “liking homosexuality” or religion bigots for that matter.
    As an aside, what is unconscionable or oppressive about: ‘treating everyone equally, fairly with dignity regardless of gender or gender identity, sexual orientation, ethnicity, culture or religious background, age or disability …’ etc., in fact those sentiments would seem to be a cornerstone of the Christian ethic, but I’m no expert.

    Indeed not, non-robot. Treating everyone equally is not treating them fairly with dignity because each person is an individual and their behaviours will differ. Thus we treat criminals differently to law-abiding citizens because of their behaviour, not their personal characteristics.

    We discriminate all the time based on reliable factors that make for real differences. If a person has been convicted of fraud and served their time, an employer may not discriminate against them in a job application based on their past record, but may still not employ them in a position of fiduciary trust. Hiding the information about their past, or making it illegal to disclose such a background does not help anyone – it only leads to misinformed decisions.

  66. Pyrmonter

    @ John A

    It’s an issue for the board, and ultimately, the shareholders, to fix. The idea that piecemeal government legislation can ‘fix’ problems of this sort is the first step down the slippery slope that leads to unlimited majoritarian tyranny.

    To be clear: I think RA has made a mess of the Folau matter; that Folau is something of a professional victim; that Joyce is a bit precious; and PwC (who parted ways with a mid-range employee who was treasurer of a body that opposed SSM) alarmingly illiberal. I think the same of the schools that have expelled ‘out’ queer pupils, and have from time to time dismissed staff upon discovery of their sexual preferences.

    But I don’t think the answer to any of these problems lies with more employment or anti-discrimination law, or indeed the enactment of ever more ‘rights’, where the state will end up ‘ranking’ rights in a quite pernicious fashion.

    Those in all quarters who seek to legislate decency (and I think that is what Sinc is proposing) need to remember the limits of the state’s powers, both in a normative and positive sense. It is both wrong to try to protect different collective interests, and attempts to offer such protection are unlikely to provide comprehensive protection in any event.

    It’s better to leave things to private negotiation, unless you are dealing with a real monopolist: most obviously the state itself (which should not be reflecting prejudices among or between the Crown’s subjects, who come in all shapes and sizes), and also in a few ‘common carrier’ type situation. But those should be the exception, not the rule.

  67. Pyrmonter

    @ Bar Beach

    There happens to be a serious principle at stake in Folau’s case: can an employee be denied the ability to work in their field of expertise because the employer, while having no qualms about their quality of work, doesn’t like the employee’s personal views and their private/personal activities away from their work?

    That is the very right those seeking ‘religious freedom’ are asserting in their insistence that they be allowed to require adherence to ‘christian sexual ethics’ – something which, now, it seems allow for divorce (despite some rather short words about divorce from the Son) yet proscribe queers, about whom we have no record of Him having said anything.

  68. Pyrmonter

    @ Des

    Googling says the relevant clauses are:

    1.3: Treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability. Any form of bullying, harassment or discrimination has no place in Rugby.

    1.7: Use Social Media appropriately. By all means share your positive experiences of Rugby but do not use Social Media as a means to breach any of the expectations and requirements of you as a player contained in this Code or in any Union, club or competition rules and regulations.

    1.8: Do not otherwise act in a way that may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit. If you commit a criminal offence, this is likely to adversely reflect on you and your team, club, Rugby Body and Rugby.

    It’s hard to square the Epistle passage he paraphrased with ‘treating everyone … with dignity’.

    There’s a problem with general clauses – they reek of the traditional lawyerly objection to ‘conduct unbecoming’; but in the context of his past run ins with the authorities, it’s hard to think he didn’t know what they expected of him.

  69. Pyrmonter

    @ Sinc

    Star Observer is the Sydney gay paper – I think it’s given away in Darlinghurst etc. Noted for coverage such as this

  70. Tim Neilson

    If he was an atheist that said something politically incorrect, that eventually led to his sacking after countless chances and requests to stop, none of the people crying over Folau would be making a peep.

    If an atheist did get “countless” chances that would be very different to Folau’s position.

    I’m not aware of any potential test case about atheism and ‘politically incorrect”, but here’s a challenge for you Iamashiteater – find any comment by anyone on this site ever suggesting that David Pocock should be sacked from rugby and pre-emptively banned by the NRL for his incessant displays of woke fuckwittery.

  71. Arky

    Best thread ever.
    Thanks clockwork brain libertarian dipshits.

  72. Des Deskperson

    ‘Googling says the relevant clauses are:’

    Thanks Prymonter.

    I’ve studied those clauses closely but I can’t seem to find the phrase ‘at all times’ anywhere. In the absence of this phrase, it would appear that the application of the code to a player’s private life is ambiguous, to say the least.

    These phrases are similarly ambiguous:

    ‘do not use Social Media as a means to breach any of the expectations and requirements of you as a player ”.

    Any form of bullying, harassment or discrimination has no place in Rugby.’

    ‘but in the context of his past run ins with the authorities, it’s hard to think he didn’t know what they expected of him.’

    Well, yes, but to the best of my knowledge and belief, no-one has actually provided evidence, apart from the code of conduct, of what RA specifically expected of him.

  73. I wrote about exactly this a few weeks ago. The simplest approach is to make opinion slavery unenforceable in contracts. Distinctions between big and small employers are crap.

    https://www.onlineopinion.com.au/view.asp?article=20524

  74. Arky
    #3189420, posted on October 20, 2019 at 9:27 pm

    It’s free trade, it’s freedom of association. it’s, it’s THE VIBE.

    What’s wrong with that you Yuan grubbing, melamine mooching totalitarian mammalian freakshow?

  75. Iampeter

    This sort of vague and subjective – for both parties -stuff is unreasonable in any employment relationship,.

    There’s nothing vague or subjective about that. It’s a stock standard code of conduct that countless people adhere to without issue and countless people lose their jobs for breaching without claiming they are being persecuted.

    There’s also nothing wrong if someone is fired for unreasonable reasons. Unless you’re a leftist who thinks who businesses hire and fire should be determined by someone other than the business.

  76. Iampeter

    Yes – I get that. But we are also (most of us anyway) perfectly capable of discussing the principle at hand.

    Then I am confused. The principle at hand has been so thoroughly evaded that we are looking down the barrel of more HRC-style regulations to help make employment even more of a nightmare in Australia.
    Discussing the principles at hand is exactly what has not happened.
    In fact, I’ve only seen posts from Spartacus correctly addressing this issue. And I mean anywhere in Australia that has any kind of readership.

    Speaking of not understanding the issue at all…https://www.onlineopinion.com.au/view.asp?article=20524. Everything in this post from David L is completely wrong. Embarrassingly so. But I’ll just quote the most relevant part to this issue:

    Rugby Australia sacked Israel Folau on the grounds that he is not entitled to express his religious beliefs, with which it disagrees, because they are said to breach his employment contract.

    That’s not what happened. Only the most dishonest SJW would paint this picture.
    Folau was fired for repeatedly refusing to comply with an instruction from his employer asking him to stop engaging in a specific action that was causing them problems. That’s the breach of contract.
    No one cares whether he’s expressing religious beliefs or not. It’s completely tangential to the issue.

  77. New Chum

    This was an article at Menzies H0use . March 5 2012 there is a link to article 19 in the post at Menzies House. Is article 19 relevant in the Folau case.

    Will Bob Brown go Against his Beloved UN Over Freedom of Speech? Damn Right He Will!

    Greens leader Bob Brown also welcomed the report and urged the government to take action to establish the proposed News Media Council to regulate news across all mediums before the end of the year.
    “I think we have an inadequate system of serving the public interest in truth,” he said.
    Senator Brown said it was important to ensure the new body was set-up as a statutory entity as recommended by Mr Finklestein because it would see Australia “catch up with other countries”.
    So that means Bob Brown doesn’t agree with Article 19 from the UN’s Universal Declaration of Human Rights:
    “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

  78. Sinclair Davidson

    Folau was fired for repeatedly refusing to comply with an instruction from his employer asking him to stop engaging in a specific action that was causing them problems.

    Indeed – and the question is whether an employer can prohibit an employee from being a practising Christian. Furthermore the government is asking employers who claim “a specific action [is] causing them problems” for evidence of that claim.

  79. struth

    I haven’t made comment before about Falou.
    Whatever his name is.
    You sign a contract, you sign a fucking contact…………………what’s so hard to grasp.
    No one signed it for him.
    Personal responsibility.
    Now if the Rugby mob reckons he broke the contract, fine, if he thinks he hasn’t, take it to court.

    No need for government intervention at all.
    If people want to protest, do what the yanks did and stay away from the game in protest.
    Aussies won’t, hence one nation is a super power and one is a basket case.
    Market and the rugby consumer can and should be more of a consideration regarding response, but not Government.
    NGIR
    No Government Intervention Required.

  80. struth

    It’s in the wording of the contract, as to what Falou could do.

    I think RA is wrong and if he hadn’t signed a contract, they should be taken to the cleaners.
    But he did.
    So the reading of the contract, what does it say?

  81. struth

    wrote about exactly this a few weeks ago. The simplest approach is to make opinion slavery unenforceable in contracts. Distinctions between big and small employers are crap.

    Second sentence correct.
    First sentence gives us increased government control, something libertarians seem to cherish.
    If you don’t want to sign the contract, yyou don’t have to.
    Man up.
    Falou signed a contract he didn’t have to.
    Tough titties.
    If they wanted him bad enough they could have negotiated it before signing.
    He could have asked, I won’t be silenced outside of hours, do you still want me as a player?

    The subject matter is not important.
    It’s the wording of the contract.

  82. I_am_not_a_robot

    Folau can always offer to renegotiate a contract where any clauses he doesn’t like, for instance prohibiting public comments insulting homosexuals, are omitted:

  83. struth

    Government does not have the right to allow or supress speech, and those advocating for it, need your arses kicked.
    However government is there precisely to enforce contractual law obligations between free citizens contracting each other.
    You dumb bastards want government to “allow” speech means you just gave it the power to ban it.

  84. Speedbox

    John Constantine
    #3189328, posted on October 20, 2019 at 7:16 pm

    …new safe internet means if you have nothing to hide, you have nothing to fear.

    Dripping with sarcasm John. Haha, yeah, I’ve always loved that one. Such a classic.

  85. Iampeter

    Indeed – and the question is whether an employer can prohibit an employee from being a practising Christian.

    How is that the question?

    The issue is that he refused to stop posting, not that what he was posting had anything to do with Christianity.

    This is what I mean. This is a very black and white issue so it’s shocking to see how much it has been twisted into something it very clearly isn’t.

    Furthermore the government is asking employers who claim “a specific action [is] causing them problems” for evidence of that claim.

    Yes and the question is do you support a business having to explain it’s decisions to a government, like who they hire and fire and why, or not?
    This should not be a trick question to anyone on the right wing side of politics.

  86. Sinclair Davidson

    The issue is that he refused to stop posting

    Stop posting what exactly?

    Yes and the question is do you support a business having to explain it’s decisions to a government, like who they hire and fire and why, or not?

    Ideally no. Yet here we are.

  87. You dumb bastards want government to “allow” speech means you just gave it the power to ban it.

    Correct.

    A GOVERNMENT THAT IS BIG ENOUGH TO GIVE YOU EVERYTHING IS BIG ENOUGH TO TAKE THAT AND MORE AWAY FROM YOU.

  88. Iampeter

    Stop posting what exactly?

    It doesn’t matter. It’s his refusal to comply that is the reason he was fired.

    But even if they fired him because they were picking on him for his beliefs, that should still be perfectly legal too, even if decent people would disagree with such a decision.

    But that’s not what happened to Folau.

  89. The BigBlueCat

    As I understand it, Israel Folau is taking RA to the High Court because he is claiming that in sacking him, RA is in contravention of S772 of the Fairwork Australia Act. Despite everyone taking positions here, the High Court will sort out what arbitration and conciliation has failed to do.

    I note that the High Court isn’t the Government taking action – it’s Folau taking his grievance to the High Court. Big difference.

  90. Bar Beach Swimmer

    That is the very right those seeking ‘religious freedom’ are asserting in their insistence that they be allowed to require adherence to ‘christian sexual ethics’ – something which, now, it seems allow for divorce (despite some rather short words about divorce from the Son) yet proscribe queers, about whom we have no record of Him having said anything.

    Please name one case where a Christian organisation has sacked, or brought before the courts, someone for doing a similar thing to Folau – wholly unrelated to and away from their work.

    The only cases that I am aware of are not employment related and are ones where Christians have been taken to court by activists, particularly during and post the marriage redefinition. While these cases have most notably occurred in the USA, cases have also arisen here – (Bishop Porteus).

    Don’t understand what you are trying to say about the Son, homosexuals and the churches’ position on Christian/non-Christian sexual mores?

    The pre-employment process should ensure that, before an offer of employment is made, along with the applicant’s qualifications etc, their attitudes, understandings and behaviours of certain subjects would be known to the employer. In the case of religious organisations, I would expect that employees would be fully aware of and conversant with the tenets of the particular faith, before ever applying for a position with the organisation. With regard to employers, most undertake a normal exploration of whether the applicant aligns with the ethos/goals of the organisation.

    Were it to emerge that such factors had come into direct conflict with the employer’s ethos then I can not envisage why the employee would stay employed at the organisation. For e.g. religious hospitals and abortion services vs doctor/nurse who disagreed and wanted to alter that formal position.

    I would be of the same opinion were the prospective employer to be a Union: I’m sure that they wouldn’t want to offer employment to any anti-union free marketeer!

  91. Iampeter

    As I understand it, Israel Folau is taking RA to the High Court because he is claiming that in sacking him, RA is in contravention of S772 of the Fairwork Australia Act. Despite everyone taking positions here, the High Court will sort out what arbitration and conciliation has failed to do.

    I note that the High Court isn’t the Government taking action – it’s Folau taking his grievance to the High Court. Big difference.

    Let’s see if you can figure out how totally wrong what you’ve said there is.

    Also, a point of clarification re Folau, he has made an unfair termination claim, not an unfair dismissal claim.
    This is because as a millionaire he doesn’t meet the salary threshold of around 150K to qualify for that kind of complaint.
    But I’m pretty sure unfair termination is specifically for gov employees and I guess they have no case so gotta try something.

    This would never have reached even the moderation stage if anyone other than Folau had tried to pull this kind of stunt.

    What a farce. And what a danger religious conservatives pose to all our freedoms. If anyone was having doubts, what’s happening here should remind everyone that these people need to be opposed just like any socialist.

  92. Tel

    Any form of bullying, harassment or discrimination has no place in Rugby.

    I demand to be paid as captain of the next Australian team. I have no idea how to play … but that’s fine because any form of discrimination has no place in Rugby, and selecting good players in favour of useless players would be a discriminating selection.

    I also demand that the other team get out of my way as I walk the ball over their try-line. I have decided that tackling me would be bullying and that has no place in Rugby.

  93. Pyrmonter

    @ Sinc

    Indeed – and the question is whether an employer can prohibit an employee from being a practising Christian. Furthermore the government is asking employers who claim “a specific action [is] causing them problems” for evidence of that claim.

    Fair point: Christians are called upon to evangelize, and Folau’s abridgment of the epistle was hardly the worst rendering of the passage. It may be he genuinely felt moved to save his brethren from eternal damnation, and was heeding both the commandments to Go ye into all the world, and preach the gospel to every creature. and You shall love your neighbor as yourself. Though colour me doubtful.

    Let’s test that for a moment: suppose that, rather than being something of a christian (his non-trinitarian views are heresy to most of us, and are the sorts of things traditionally associated with sectarian wars – see https://www.firstthings.com/web-exclusives/2019/04/israel-folau-unlikely-martyr) Folau worshiped the great Cat God; and that part of his religious observance required the ritual sacrifice of 6 week old puppies. He is warned not to do so, at least in public, but then does so before an improvised shrine in Federation Square. Could his employers have a legitimate concern that such behaviour might alienate their customers; his fellow employees; or for that matter, simply be wrong? Would they need to consult m’learned friends and prepare a brief before acting to dismiss?

    What if, rather than an imagined feline deity, his practice involved, ahem, the abuse of wildlife, like wombats, as part of a customary practice. Would that be permissible?

    The tendency to ‘cancel’ on the basis of imagined or even modest sleights is unpleasant, anti-social and in-conducive to ‘social harmony’. But is seeking to legislate the problem away – especially in the tortuous field of employment law – likely to improve things?

  94. Bar Beach Swimmer

    @Pyrmonter

    Your examples are illegal – animal cruelty is a crime – while Folau’s posts are not.

  95. Arky

    Fess up Davidson.
    This post was designed just to keep Iampeter and Dot busy.
    No sure what Struth is doing though.
    I thought he had a regular brain.

  96. The BigBlueCat

    Let’s see if you can figure out how totally wrong what you’ve said there is.

    Other than calling the Fair Work Act the Fairwork Australia Act, and saying Folau is taking his case to the High Court when I should have said the Federal Court, I’d be pretty certain that if Folau couldn’t take his claim to court, his legal team would have said so. His day in court will be Feb 4, 2020. Let’s see if he gets his hearing. The court will decide if the termination of the agreement was unlawful under the FWA. I doubt you’re in a position to adjudicate.

    Folau is seeking a legal adjudication and not a political one. Therein lies the difference. If you think otherwise, that’s your problem.

    But I’m pretty sure unfair termination is specifically for gov employees and I guess they have no case so gotta try something.

    What???? FWA is for all employees, not just those working for the government or covered by awards or enterprise agreements … even those above $150k earnings have used the FWA to make a claim. If Folau can’t take his claim to the Federal Court, he ought to know by now, as his legal team ought to have advised him. Have they? Or do you have “special knowledge”?

    This would never have reached even the moderation stage if anyone other than Folau had tried to pull this kind of stunt.

    Folau is a high-profile complainant, and there are many in the community supporting his case. If he didn’t think he had a case, his legal team would have advised him so – save you money and move on. Clearly, they think they can win. Time will tell. I doubt it’s a stunt – the stakes are too high.

    What a farce. And what a danger religious conservatives pose to all our freedoms. If anyone was having doubts, what’s happening here should remind everyone that these people need to be opposed just like any socialist.

    Australia is supposed to be a secular country – by definition, the law is therefore not connected to religious or spiritual matters per se. But the law is interested in the protection of rights. The Federal Court will need to work out if the termination of Folau’s agreement with RA was lawful or not, and what the remedies might be if the termination was unlawful. Hardly a farce, and everyone has a right to have their claim be heard if they have a prima-facie legitimate case.

    My understanding of the proposed Religious Freedoms Act is to make the rights of religious institutions and individuals clear. Sounds like more work is needed. But restricting the rights of religious people who wish to publically and legally express their religious convictions that are totally unconnected with their work is more in line with Marxist-Leninist practice. What’s next? Make religion illegal?

  97. Roger

    It may be he genuinely felt moved to save his brethren from eternal damnation, and was heeding both the commandments to Go ye into all the world, and preach the gospel to every creature. and You shall love your neighbor as yourself. Though colour me doubtful.

    You’ve just declared your bias.

  98. struth

    No sure what Struth is doing though.
    I thought he had a regular brain.

    I’m quite simply saying a contract was signed,
    Depending on the wording of the contract is who is right and wrong, which should be decided by a court.
    If he wanted to say things he signed a contract stating he wouldn’t say, then bigger fool him.
    I may agree with his point, I may not.
    It’s irrelevant.
    If somebody wanted me to sign a contract telling me what I can and can’t say after hours, I have the freedom to accept or tell them to take a leap.
    He decided to sign,,,,,,,,,,,,,,,,(many dots)

  99. Pyrmonter

    @ Roger

    I have indeed thought about the subject and sought to review the available material. I may be wrong; but I think Folau has done this to milk the situation; and that the ACL are engaged in nothing more than a fundraising campaign; and an odd one, given it is in support of someone whose views are heretical those who believe Christ part of a triune God, something I’d have thought pretty much essential for everyone from Copts, Assyrians and Orthodox through Lutherans, Roman Catholics and Anglicans, to Salvationists and Pentecostals.

  100. Pyrmonter

    Fresh on the back of Sinc’s post, the Social Media policy of the E&W Bar Standards Board. The lawyers are adopting for themselves a standard that makes RA’s Code of Conduct look a model of clarity:

    https://www.barstandardsboard.org.uk/uploads/assets/c7cea537-53f8-42a8-9f6d8ef1832a7db9/Social-Media.pdf

    In a different context of course, this is being celebrated by the Brexiteers of Guido Fawkes: https://order-order.com/2019/10/21/bar-standards-board-slaps-fbpe-qc-twitterati/

  101. The BigBlueCat

    Pyrmonter
    #3190691, posted on October 22, 2019 at 10:21 am

    Folau is high-profile because of his rugby playing abilities and the controversy regarding the termination of his RA contract, RA’s Code of Conduct and the expressions of religious conviction that Folau believes should not cause termination of said contract.

    In principle, it doesn’t matter if Folau is heretical or not, Christian or not, if what he has expressed is his deeply held religious conviction, and it is lawful for him to express the things he did. What he has expressed is pretty run-of-the-mill Christian theology – those who rebel against God and engage in what the Bible declares as immoral behaviour will not inherit the “Kingdom of God” unless they repent (turn away) from their sin, ask God for forgiveness and accept Jesus Christ as their personal saviour.

    He hasn’t incited violence and he hasn’t expressed hate (just the opposite – he has expressed concern for sinners’ eternal well-being). He did not target individuals – he targetted behaviours. What he has done is invited those in rebellion against God to change their ways so that they may be saved from the place appointed for unrepentant sinners. This is what he earnestly believes. There is nothing strange about this from a classical Christian perspective – it is theologically sound. It is not heretical or heterodoxic. Other things he believes might be – that is not the central issue here.

    Having said all that, the “turn-or-burn” message isn’t especially efficient in terms of evangelism. He was probably unwise to have dug in his heels – he could well have done something about it without having to resort to an apology or recanting the statement. But that’s his decision.

    Let’s see how his action in the Federal Court pans out.

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