Corporate overreach

Two instances of employment law have caught my eye in the last week:

The boss of BHP has said he won’t tolerate crude joke-telling at work despite the workplace authority deciding the mining giant unfairly sacked a worker for being a bit of a “larrikin”.

and

BP has launched Federal Court action to try to overturn a Fair Work Commission decision reinstating and compensating a company technician sacked for sharing a Downfall parody video.

In each case the company sacked an employee for violating a corporate code of conduct. Similarly last year Peter Ridd got sacked for violating a university code of conduct.

In each instance the employer has argued that they have to right to set and enforce codes of conduct. BP is explicit:

A BP spokeswoman said on Wednesday that “after careful consideration”. the company was appealing the full bench decision.

“It is important that companies can enforce their codes of conduct.

The spokeswoman said BP had “worked incredibly hard over many years to create a work environment that is based on strong values and behaviours”.

“We have clear expectations for how we work at BP and this applies to all staff, every day. If those expectations are not met, we take appropriate action.”

At the risk of sounding unsympathetic to the notion of employment at will, it seems to me that this is not the legal regime that governs employment law in Australia. In particular employers cannot circumvent employees (other) legal rights by simply unilaterally imposing a code of conduct.

Now if BHP, BP, JCU etc. want to have such a legal regime they should lobby the Parliament.

This entry was posted in Freedom of speech, Hypocrisy of progressives, Rule of law. Bookmark the permalink.

24 Responses to Corporate overreach

  1. Roger

    In particular employers cannot circumvent employees (other) legal rights by simply unilaterally imposing a code of conduct.

    Correct.

    That’s why corporations will continue to lose these cases.

    It’s overreach by the managerial class and it’s very important for all of us that they are put in their place.

  2. Rafe Champion

    Looking at disputes in strata units years ago when I wrote a layman’s guide to the laws I encountered the test of “reasonableness” meaning at some point in disputes commonsense should intrude unless there is a very clear legal requirement to do, or not do something. 18c has introduced a very unreasonable constraint to certain forms of speech but where that cannot be invoked to police political correctness we can only hope and pray that the law will continue to allow larrikin humour on a worksite site. This is Australia goddammit!

  3. Rafe Champion

    To make a point about laws enforcing mad constraints, the original Strata Titles Act in NSW required the units to be on different strata and a row of town houses build on the same level could not be registered until the height of the floors was expensively modified so each one was about an inch different from the one next door. And in Victoria when a unit owner and the body corporate each refused to pay for repairs to something like the external window frames they had to go to the Supreme Court to get a ruling. Later they created a public service position to handle that kind of thing free of charge.

  4. Kneel

    How relevant is this same argument WRT the latest NRL Bulldogs “scandal”?
    Seems the players did nothing illegal, just against the NRL “code of conduct”.
    Hmmm…

  5. Pyrmonter

    Is it over-reach? It will generally be a condition of employment that employees comply with applicable codes of conduct from time to time. These cannot be stipulated contractually in advance: requirements such as those to do with the safe operation of machinery and the like (which are very extensive) change, and it would be a nonsense (and probably unfair) to discharge and re-hire staff every time they do so.

    For reasons reflective of industrial power, and to an extent common sense, many employers have been fairly liberal-minded about what staff do. They don’t dismiss summarily the indolent, nor those who use of social media (or, ahem, blogs).

    As employers are deemed vicariously liable for ever more of their employees’ wrongs under ‘safety’ legislation (the benefit of which enures to, among others, customers and visitors to premises) we can only expect that liberal-mindedness to be curtailed.

  6. Lee

    BP has launched Federal Court action to try to overturn a Fair Work Commission decision reinstating and compensating a company technician sacked for sharing a Downfall parody video.

    The horror! The horror!

    The only people happy with his sacking will be lefties, and those who believe that employers should have the right to unilaterally sack an employee for any reason, even non-work related.

  7. Pyrmonter

    @ Rafe

    From memory, your book on strata law was critical of it. Among other things, there were no statutory duties on the part of Exec members in NSW to be honest; act in the interest of the corporation or to act competently. That has been the background to massive majoritarian voting abuse by some prominent developers, though I think it remains arguable that there are common law duties. It’s a pity we’ve ended up with such a poor governance system.

  8. Pyrmonter

    @ Lee

    The parody was of the employer’s conduct. One fair interpretation was that he was suggesting they were desperate, unhinged and disconnected from reality: that’s the point of Ganz’s controversial portrayal of Hitler (something which doesn’t come through quite as well with subtitles, and is lost in the sometimes witty re-sub-titling).

    I’d expect to be sacked if I made the same accusation directly: I really don’t see the unfairness.

  9. Lee

    Pyrmonter, in my opinion, by law no employer should be allowed to have a code of conduct for employees outside the workplace.

  10. David Brewer

    Codes of conduct have become the playthings of petty dictators in personnel departments who want to stifle employees’ free speech. They are a constantly accumulating burden of regulation imposed on individual employees, and their only effective use is to threaten and intimidate. Moreover, it is always doubtful whether they can be enforced, especially on employees who joined their companies before the Codes existed or reached their present form.

    Chief executives and boards of major companies should think twice before approving such codes in future, and should review and consider abolishing the ones they have got. The current cases show that, far from protecting businesses as personnel departments claim, they are actually exposing them to unnecessary legal costs and reputational damage.

  11. Roger

    Is it over-reach? It will generally be a condition of employment that employees comply with applicable codes of conduct from time to time.

    Yes, it is. The question at issue is the limitations imposed upon those codes by law.

    The managerial class don’t seem to grasp that they are not the arbiters of what is legal speech.

  12. DaveR

    A BP spokeswoman said on Wednesday that “after careful consideration”. the company was appealing the full bench decision.

    “It is important that companies can enforce their codes of conduct.

    That’s correct. Companies need to be able to enforce their codes of conduct, to which an employee signs up to when they join (or they don’t join).

    But that’s not the issue. Its how far these codes of conduct intrude into people’s everyday rights of action and expression, including off-colour parody.

    BHP, the very PC BP, JCU and Rugby Australia (although the Folau issue was to do with the rights of religious expression) will all have to learn their codes of conduct cannot extend nearly as far as they want them to.

  13. Professor Fred Lenin

    Suppose they have to have code of conduct rules to avoid lawfare attacks from snowflakes .

  14. Roger

    BHP, the very PC BP, JCU and Rugby Australia (although the Folau issue was to do with the rights of religious expression)

    Rights to religious expression are no different from rights to general free speech.

    Having said that, Australia is a signatory to several international legal instruments that guarantee freedom of religious expression.

    All of this is why RA had no chance of prevailing against Israel Folau, although it’s a pity the matter didn’t progress into case law.

  15. stackja

    I understand JCU are using taxpayers money.

  16. stackja

    Companies are wasting shareholders money in court cases.

  17. stackja

    NRL are trying to control men being men and girls being girls.

  18. Old Lefty

    As for the “no satire” policy that JCU used against Ridd: in the era of the so-called fascist tyrant Menzies, Vice-Chancellors, senior professors and senior administrators would turn up to the annual Revue to be lampooned (gently for the most part) and take it in good spirit. An old boss of mine remembered a skit at the ANU Revue in the early 60s on :Professor Cunning Lark’. Imagine that today!

  19. Pyrmonter

    @ Lee, @ Roger

    Employer A says ‘no code’.

    Employer B says ‘our code is that you must not criticise us, ever, on work time or your own. Oh, and we pay $500/week more than A’.

    Should I be denied the option to chose B over A?

  20. Iampeter

    At the risk of sounding unsympathetic to the notion of employment at will, it seems to me that this is not the legal regime that governs employment law in Australia. In particular employers cannot circumvent employees (other) legal rights by simply unilaterally imposing a code of conduct.

    It’s not possible for any of your legal rights to be circumvented by any code of conduct of any organization you voluntarily choose to join.
    If you don’t like it then you can quit.
    Basically an employer should be able to hire and fire you for any reason.

    But you’re right that Australian laws don’t care about this fact and it is effectively illegal to fire someone if they don’t want to be fired, requiring you to go through an expensive and time consuming process seeking the state’s permission.
    It’s sad that this leftist state of affairs has become so normalized that even on Australia’s leading right wing blog no one seems to even understand the fundamentals at play (like how rights work), let alone is anyone advocating for this nonsense to be overturned and repealed.

  21. Iampeter

    Rights to religious expression are no different from rights to general free speech.

    Yes and neither right can be violated by firing someone.
    In fact our situation is the exact opposite in that employers are routinely having their free speech and religious freedoms violated by not being able to fire whoever they want for whatever reason they want.

    So in the Folau example, it is RA that had their rights violated by being dragged to Fair Work, not Folau for being sacked regardless of what the reason was.

    Essentially these issues are being as totally misunderstood and taken as completely backwards as is possible.

  22. amortiser

    Peter Ridd was sacked for breaching the code of conduct of JCU. Unfortunately, for JCU Ridd had a signed employment contract registered with the FWC which guaranteed him academic freedom. His employment contract and the rights it afforded him trumped the JCU code of conduct.

    JCU has now altered its employment agreement to muzzle its academics by specifically applying the code of conduct to the terms of the employment agreement.

    The Ridd case is a bit different to this one.

  23. Cynic of Ayr

    The statement:
    The spokeswoman said BP had “worked incredibly hard over many years to create a work environment that is based on strong values and behaviours”.
    “We have clear expectations for how we work at BP and this applies to all staff, every day. If those expectations are not met, we take appropriate action.”

    For this, read, “The Board has spent a considerable amount of share holders money, including many, many hours of Board Members time – at full salary – mucking about with what the Board thinks is a nice thing to do. Production is secondary. We actually don’t give a shit what our workers want, as long as we can attend Cocktail Partys and be “Woke!””

  24. Iampeter

    The Ridd case is a bit different to this one.

    It’s not different. It’s exactly the same. The technicalities you’re homing in on are not essential to the issue.
    The issue in all these cases is simple: employers are having their rights violated.

    Those claiming to stand for free speech are then accusing the employers of engaging in “corporate overreach” at best, or outright “violation of religious freedoms” at worst, as we saw with the farcical response from conservatives to the Folau sacking.

    When in fact these employers, from the JCU to RA, are the very victims of these violations.

    Basically if you support free speech, freedom of religion, academic freedom, etc, then you must support the right of any organization to fire anyone for any reason. Period.

    The fact that we have laws on the books preventing this from being possible means that these are, at the very least, censorious laws. Advocates of free speech should be fighting these laws, not their victims.

    But I would add that the much bigger issue is that any of this even needs explaining.
    That’s what really needs discussing.

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