Workers’ Constitutional Rights Arising From Unlawful Termination Case of Hilda Zhang

Hilda, an accountant, was forced to falsify accounting records and reports (cook the books). After she complained about her boss’s unlawful instructions and activities both inside and outside the company she was immediately dismissed on 16 December 2003.

In the Federal Court, a judge characterized Hilda’s complaint as “only in the capacity as employee” and the employer’s counsel conceded that: “the illegality is in fact on the part of the employer”. However the Federal Court struck out her claim of unlawful termination of employment certified by the Industrial Relations Commission and dismissed her appeals, holding her claim “had been instituted vexatiously or without reasonable cause” because she did not file a complaint against her boss’s unlawful instructions and activities “to a Court or Tribunal” before she was terminated.

Under the Covering Clause 5 of the Constitution: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State;……”, however, Hilda has been punished whilst she tried to uphold and obey law in the workplace, and sought protections from the courts. The Full Federal Court ignored Hilda’s appeal grounds in respect of workers’ Constitutional rights in the workplace.

On 21 April 2006, under the Judiciary Act, notices of a Constitutional matter certified by the High Court were serviced to the Attorneys-General of the Commonwealth, the States and Territories. Apparently the High Court wanted to obtain opinions from the Attorneys-General, the elected officers and members of parliaments, on whether that workers’ Constitutional rights in the workplace arisen from this case were of “public importance”, which was an essential “Criteria for granting special leave to appeal” under the Judiciary Act. However none of the Attorneys-General directly responded to the notices specifically addressed to them under the Judiciary Act.

On 10 May 2006, the High Court did not doubt that Hilda’s appeals were about workers’ fundamental Constitutional rights and did not doubt that she could win her appeals if special leaves to appeal were granted, however, holding to the effect that they were not “sufficient to justify a grant of special leave to appeal” because “No Attorney-General has indicated a desire to intervene”, even though the High Court was informed on 5 May that 600 people had supported and signed the petitions against the laws made by the Federal Courts in the judgments of Hilda’s matter.

On 23 August 2006 a solicitor from Victorian Government Solicitor finally responded to the notices of 21 April 2006 and wrote: “This office deals with all s 78B notices referred to the Attorney-General for the State of Victoria”, “As a general rule, the Attorney-General does not intervene in special leave applications”, “The High Court has indicated previously that is not appropriate as, until leave is granted, there is nothing to intervene in”.

The Judiciary Act did not refer s 78B notices to any Government Solicitors, who were neither the elected officers nor members of parliaments, but the Attorney-General surrendered his responsibility, as the elected people’s representative, which has been enacted by the Judiciary Act, to some solicitors. The solicitors were not able to take this responsibility and excused themselves by saying: The High Court has indicated previously that is not appropriate for the Attorney-General to intervene, until leave is granted. However, the High Court did not indicate that they knew anything in relation to the solicitors’ allegation. In the transcript, the High Court simply said: “The applicant has also filed, and [served], a notice under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General……. No Attorney-General has indicated a desire to intervene.”

Implicitly, people’s fundamental Constitutional rights are important for the people. Over a thousand people have signed the petition on paper including Ms Sharan Burrow (the president of Australian Council of Trade Unions), Father Bruce Duncan (Redemptorist Priest) and Mr Peter Marshall (the president of Victorian Trade Hall Council) and Members of Parliaments.

Organizations Have Supported the Petition:

Central Branch of Union Solidarity, Maritime Union of Australia Victorian Branch, International Socialist Organization, Communication Workers Union, P+T Victorian Branch, Union Solidarity, Socialist Alternative, Socialist Party, Australian Services Union, Industrial Workers of the World, Friends of the Earth, Communication Workers Union of Australia, Socialist Alliance, Unite, Geelong and Region Trades and Labour Council, Australian Manufacturing Workers’ Union North Districts Committee (AMWU Victorian Branch), Thornbury Women’s Neighbourhood House, Darebin Workers Rights and Social Justice Campaign, Australian Manufacturing Workers’ Union Victorian Branch, Construction and General Division of Construction, Forestry, Mining and Energy Union Victorian Branch, United Firefighters Union Victorian Branch, Darebin Community Legal Centre, Australian Nursing Federation Victorian Branch, Australian Meat Industry Employees Union, Australian Education Union Victorian Branch, Mining and Energy Division of the CFMEU Victorian Branch, Australian Institute of Marine and Power Engineers Victoria/Tasmania Branch, Royal Melbourne Institute of Technology University Students Union, Communications, Electrical and Plumbing Union of Australia, Electrical Trades Union of Australia Southern States Branch, Australia Asia Worker Links Inc., Women's Information Referral Exchange, Australian Nursing Federation, Country Alliance, Preston Reservoir Progress Assoc, National Tertiary Education Union, Western Suburbs Legal Service Inc., Union of Australian Women Southern Branch, Union of Australian Women, seditioncharter.org

MPs Have Supported the Petition:

Ms Nicola Roxon MP (ALP), the Hon Simon Crean MP (ALP), Mr Lindsay Tanner MP (ALP), Senator Lyn Allison (ADP), Ms Anna Burke MP (ALP), Ms Catherine King MP (ALP), Senator Gavin Marshall (ALP), Ms Maria Vamvakinou MP (ALP), Mr Carlo Carli MP (Vic ALP) and Mr Alistair Ross Harkness (Vic ALP), Mr Gavan O’Connor MP (ALP), Ms Tamara Lobato MP (Vic ALP), Mr Donato Antonio Nardella MP (Vic ALP), Ms Dympna Anne Beard MP (Vic ALP), the Hon Marsha Rose Thomson MLC (Vic ALP), Mr Ian Douglas Trezise MP (Vic ALP), Mr Luke Donnellan MP (Vic ALP) and Mr Jude Perera MP (Vic ALP), Mr Anthony Robinson MP (Vic ALP), Mr George Seitz MP (Vic ALP), Mr John Eren MP (Vic ALP), Mr Shaun Leane MLC (Vic ALP), Ms Colleen Hartland MLC (Vic Greens), Mr Greg Barber MLC (Vic Greens), Mr Nazih Elasmar MLC (Vic ALP), the Hon Robert Smith MLC (Vic ALP), Ms Gayle Tierney MLC (Vic ALP), Mr Tim Pallas MP (Vic ALP), Ms Fiona Richardson MP (Vic ALP), the Hon Gavin Jennings MLC (Vic ALP), Mr Evan Thornley MLC (Vic ALP) and Mr Martin Pakula MLC (Vic ALP)

Local Government:

Moreland City Council

Online petition: http://gopetition.com/online/9454.html (to Federal Senate)

Website: http://www.upholding-peoples-rights.blogspot.com

Email: Upholding.Peoples.Rights@hotmail.com