Faced with what some saw as long odds at the Fair Work Commission (FWC) Antoinette Lattouf’s team moved her unfair dismissal case to the Federal Court on Friday. Andrew Gardiner asks why they felt the need to do so, and what that says about this country and its future:
Antoinette Lattouf has escalated her case against the ABC, suing the broadcaster for breaching its own employee
Enterprise Agreement (EA) and in-so-doing effectively moving for a change of venue from the FWC – where she faced what many saw as long odds – to the Federal Court.
The case, which follows Lattouf’s December axing from ABC radio’s Sydney Mornings program, has become a cause célèbre among journalists, progressive luminaries and Muslim Australians. Her new Statement of Claim lodged with the Federal Court states the ABC breached its EA no fewer than five times, and “flagrantly ignored its legal obligations when it panicked and summarily dismissed” the regular fill-in presenter.
The higher-stakes EA case adds to Lattouf’s existing action against the ABC for allegedly axing the presenter because of both her political opinions and race (the ABC denies these accusations). Her team wants both cases to be heard together in the Federal Court – a higher body able to hear EA breach matters – at an early juncture.
In December, Lattouf was shown the door by senior ABC management after reposting content from the respected Human Rights Watch group, which alleged the Israeli government was using starvation as a weapon of war in Gaza (these same claims were aired on ABC News). The following month, Nine newspapers alleged Lattouf’s axing followed what they called organised lobbying by a pro-Israel group which directly targeted the corporation’s chair, Ita Buttrose, and managing director, David Anderson.
Despite an existing application before FWC, which was slated for early March, it’s believed Lattouf’s new legal team were worried about circumstances surrounding the case, such as the ABC’s hard line response to Lattouf’s action, its retaining a US law firm accused of union-busting and the matter being assigned to controversial arbiter Gerard Boyce.
Boyce has already made preliminary orders in the Lattouf case, rejecting her team’s motion for the ABC to produce emails sent to Buttrose and Anderson, in which Jewish groups reportedly called for the presenter’s axing. Hearing the case to the Federal Court would be a ‘game changer’ of sorts, showing the ABC that Team Lattouf ‘can play hardball too.’
Gerard Boyce came to FWC in 2018, part of what then-Opposition Leader Bill Shorten called a wave of “20 corporation-friendly appointments in a row” under successive LNP governments. Boyce had previously worked as a barrister for the Australian Mines and Metals Association, an employer advocate which, per its website, gives fossil fuel interests “a unified voice (with) the ability to influence policy development.”
Media interest in Boyce spiked in 2020, when he had to remove up to 20 ‘anime’ figurines from his office after staff objected, including a pantless Margot Robbie (as Harley Quinn, from the movie Suicide Squad). Not to be deterred, Boyce soon replaced the figurines with an equally-contentious, life-size cardboard cutout of Donald Trump (above left).
Office displays are one thing, but it was Boyce’s actions as a deputy president at FWC that sparked peak outrage. In 2020, AFR reported that some two hours before he approved a controversial new enterprise agreement, Boyce secretly emailed modelling not seen by unions to employer BHP, showing the deal left workers worse off than the award minimum.
The Fair Work Act’s ‘BOOT’ test requires that workers covered by a new agreement are broadly better off than under the old award. Some 90 minutes after Boyce’s email, BHP’s lawyers replied that the modelling was inaccurate and that the agreement passed ‘BOOT’.
Minutes later, and with no input around the modelling from unions, Boyce published decisions approving the agreement. His decision was later overturned by FWC’s full bench, which noted Boyce’s “curious” communications with The Big Australian.
“It must be presumed [the modelling faxed to BHP] was not considered by [Boyce]” the bench said. Then-opposition industrial relations spokesman Tony Burke held a less-charitable view: “this man is a joke.”
The “wave of 20 employer appointments in a row” which made Boyce an FWC deputy president was replicated in other tribunals, agencies and government corporations by successive LNP governments from 2013-22. Research from the Grattan Institute found nearly 1 in 10 of all federal government appointees have a “direct political connection,” a figure which rose to 21 percent when those positions are “well paid, prestigious, and powerful.”
Neither side of politics is blameless in the “jobs for mates” department, but its pace peaked during the Turnbull and Morrison years. “Those two governments took political appointments to a new level, often simply ditching a merit-based selection process,” the Grattan Institute’s Kate Griffiths told Pearls and Irritations.
An alarming case in point was the AAT, where the Australia Institute says up to 40 percent of appointments were political during the Morrison years (2018-22) compared to 6 percent under John Howard (1996-2007).
Over at the ABC, LNP government appointees still make up six of the nine-strong ABC Board, almost two years into a new government. Some see ripple effects in the ABC’s disparate treatment of Lattouf and Weekend Breakfast presenter Fauziah Ibrahim, who was back on air just weeks after she was discovered compiling social media “sh*tlists” of “Labor trolls/thugs” and “lobotomised sh*t-heads.”
In her waning weeks at Aunty, Buttrose finds herself at the centre of a high-stakes judicial showdown. Not the ideal scenario to go out on.
What can we do about “jobs for mates,” and what are the costs for our future if we sit on our hands? Hoped-for solutions are already on the table, thanks to ‘Teal’ MP Sophie Scamps and public policy think tanks, who want an independent watchdog and a clear, legislated process for government-appointed jobs.
The Grattan Institute’s proposed version (above) involves three critical reforms: (1) advertise every position, clearly setting out the criteria required; (2) empower an independent panel to select a short-list of candidates, and (3) give the minister a simple choice: (i) select a candidate from the shortlist, or (ii) start over with updated criteria which must be published.
No system is perfect, but this one would shine light on the process and minimise the ‘wriggle room’ ministers currently have to skew an appointment to possible advantage. “If the [Albanese] government is serious about doing politics differently, this is an easy change that would make a real difference,” the Grattan Institute’s Griffiths told Pearls and Irritations.
Indeed, the new government did seem serious when it axed arguably the most politicised tribunal, the AAT, forcing members to reapply for jobs if they wanted to work at an all-new Australian Review Tribunal (ART). But think tanks say the new ART bill fails to spell out a robust, transparent, merit-based appointment procedure, handing “too much discretion to the minister … to bypass the assessment panel.”
Worse still, Labor only made changes to the AAT, leaving other agencies untouched. “We would have loved to see them tackle it wholesale, including government business enterprises, but this is piecemeal,” Griffiths told Pearls and Irritations.
Inequality (and corruption) on a Third World scale could be in our future if little or nothing is done, experts say. After all, not every employee can manage Antoinette Lattouf’s game changing manoeuvre.