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David Libra

I dare you to try


Joined: 27 Jul 2003
Location: Andromeda

PostPosted: Tue Jun 25, 2019 8:34 pm
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stui magpie wrote:
Unless a code of conduct (or other policy such as a Social media policy) contains clauses that are illegal or conflict with the industrial instrument to the detriment of the employee, a union is powerless to do anything about it. All they can do is defend each and any instance of dismissal that they're called on to do by a member (they'll only support you if you're a financial member and they're an increasingly dwindling species) or lobby for changes to laws.

They can't take industrial action against an employer or force them to change policy they don't like

Similarly, what are "unreasonable or unhealthy expectations"is determined by reference to law, industrial instruments and FWA precedents, not personal opinion.

If these things are why unions exist today, they have no role.


Is it my imagination, or are you completely neglecting to acknowledge the existence of collective bargaining? My limited experience of going through an enterprise agreement was that practically everything was – at least in theory – on the table, from pay rates to entitlements to conduct codes to disciplinary mechanisms (and legal/illegal has nothing to do with it; obviously an employer can't have illegal requirements in a code of conduct). Of course, if collective bargaining didn't exist, then I would probably agree; unions would serve no point other than to serve as lobby groups while also keeping an eye on employers and ensuring that they don't cut any corners. But they don't need to just accept whatever's written in a workplace contract as unchangeable, and the possibility of negotiating and changing that is one of the key functions a union provides.

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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
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PostPosted: Tue Jun 25, 2019 8:52 pm
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^

It's your imagination.

Where do you think you get the enterprise Agreements and Industrial instruments I referred to from?

And as far as everything being on the table, I don't know what your experience was like but think of it like the AFL trading period. Every player is on the table, if the price is right.

Each side will have things that they really want and things they are prepared to give up, the trick in negotiation is finding the balance.

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Morrigu Capricorn



Joined: 11 Aug 2001


PostPosted: Wed Jun 26, 2019 12:40 am
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https://www.news.com.au/sport/sports-life/one-unresolved-legal-question-at-the-heart-of-israel-folaus-case/news-story/387b057b25ab325d35ea494b9ed087b3
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K 



Joined: 09 Sep 2011


PostPosted: Wed Jun 26, 2019 5:14 am
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^ From the article:

'“The problem is these cases keep settling, so we don’t get a decision,” Prof Forsyth said. “Us employment lawyers are desperate for a ruling.”

He said he was “almost as certain as I can be” that Folau and Rugby Australia would end up settling as well.

“Obviously these settlements are always without any acceptance of liability and they’re confidential, but you’ve got to think about the commercial pressures they’re under,” he said of the sport’s governing body.'



I don't know why Forsyth is so certain. RA might be desperate to settle (they already tried to settle for $1 million), but Folau may not be interested in settling, if he believes it's about some principles he cares about.
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stui magpie Gemini

Prepare for the worst, hope for the best.


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PostPosted: Wed Jun 26, 2019 8:18 am
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Interesting article about the ethics, obligations and rights of employers and employees

https://www.abc.net.au/news/2019-06-25/israel-folau-crowdfunding-free-speech-simon-longstaff-analysis/11245082

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David Libra

I dare you to try


Joined: 27 Jul 2003
Location: Andromeda

PostPosted: Wed Jun 26, 2019 11:06 am
Post subject: Reply with quote

Morrigu wrote:
https://www.news.com.au/sport/sports-life/one-unresolved-legal-question-at-the-heart-of-israel-folaus-case/news-story/387b057b25ab325d35ea494b9ed087b3


That's a great article, thanks Morrigu. Some quotes there really cut to the heart of why this case is so important:

Quote:
That conflict, between an employer’s right to impose standards of conduct on its workers and an employee’s right to religious expression, has never been properly tested in court.

There simply isn’t a precedent to tell us how far Folau’s rights go in this scenario.

We don’t really have any case law specifically dealing with it, so the question for the court is going to be: is it encompassed within the protection of religion that a person is therefore able to say whatever they think, or quote from the Bible in any way that they like, publicly, in the way that he has done here?” Prof Forsyth said.

“The problem is these cases keep settling, so we don’t get a decision,” Prof Forsyth said. “Us employment lawyers are desperate for a ruling.”


I also reckon he has a very strong case, based on this:

Quote:
Folau has launched his claim under Section 772 of the Fair Work Act, which details all the reasons an employer cannot use to terminate a worker’s contract.

Religion is one of them.

So, Folau’s argument is quite simple in principle. He will say Rugby Australia sacked him for practising his religion, and therefore the termination was unlawful.

“As a manifestation of Mr Folau’s religion, he is compelled to communicate the word of God and the message contained within the Bible, the doing of which he considers to be a loving gesture to others,” Folau’s legal team said in its application to the Fair Work Commission.

“What he will say is, OK, I entered into that contract and the code, but I’m protected by discrimination law, in this case the Fair Work Act,” said Prof Forsyth.

“That protects my right to practise my religion, and you can’t dismiss me for exercising my right to practise my religion, to express my religious views.”


And he could well argue that he signed the contract under the presumption that it would not come into conflict with discrimination law, which would render many of the accusations levied against him (here and elsewhere) moot.

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David Libra

I dare you to try


Joined: 27 Jul 2003
Location: Andromeda

PostPosted: Wed Jun 26, 2019 5:05 pm
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Stephen Jones (the Labor MP who moved one of the first same-sex marriage bills back in 2012) makes some great points about the Folau case here:

https://mobile.abc.net.au/news/2019-06-25/this-is-what-multiculturalism-looks-like/11246136

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Morrigu Capricorn



Joined: 11 Aug 2001


PostPosted: Wed Jun 26, 2019 6:32 pm
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David wrote:
“As a manifestation of Mr Folau’s religion, he is compelled to communicate the word of God and the message contained within the Bible, the doing of which he considers to be a loving gesture to others,” Folau’s legal team said in its application to the Fair Work Commission.


As an atheist I have no idea what the bible says and I might add no desire to learn!

But I found this article interesting:

Two replaced words crippled Israel Folau’s bible verse defence

In April, Folau shared a post on Instagram which said: “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolaters HELL AWAITS YOU Repent! Only Jesus Saves”.

Corinthians 6: 9-10, meanwhile says: “Do you not know that the unrighteous will not inherit the kingdom of God? Neither fornicators, nor idolaters, nor adulterers, nor homosexuals, nor sodomites, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners will inherit the kingdom of God”.

Note the difference?

“Everyone has missed the key here, have a look at the post, it says ‘Warning’ and ‘Hell’, but the Bible verse does not mention either word,” a source told The Daily Telegraph.

“Izzy was getting told he’d go to hell if he took down the post, but if he had removed that image and re-posted word for word what the verse says, they couldn’t have sacked him.”

https://www.news.com.au/sport/sports-life/two-replaced-words-crippled-israel-folaus-bible-verse-defence/news-story/5d99538df841c0a98212bf1a186e3f65
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K 



Joined: 09 Sep 2011


PostPosted: Wed Jun 26, 2019 6:51 pm
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^ Yes, it's true Folau would have been much safer legally if he'd just posted a direct quote and nothing else, just as it's true that RA would have been much safer legally if they'd put a relevant clause in his contract.

The two parties didn't do those things, so it's less clear.
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Morrigu Capricorn



Joined: 11 Aug 2001


PostPosted: Wed Jun 26, 2019 7:40 pm
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^ Disagree! The RA Code of Conduct is very clear with regard to expectation of all players, officials et al - if they had put a specific clause in his contract preventing him from making religious comment or religious social media posts surely that would be discriminatory under the Fair Work Act?
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K 



Joined: 09 Sep 2011


PostPosted: Wed Jun 26, 2019 7:41 pm
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Well, all the legal opinions (from people with legal expertise, not from ex-player journo/media personalities, who are entitled to their opinions about his views but sound increasingly deranged when they try to play lawyer) in the articles linked in this thread show it's unclear.

Dial-a-quote law professors will of course sit on the fence. "Professor X said RA will argue blah blah. He said Folau's team will argue blah blah." That's what Forsyth did in the article above.

One of the more detailed legal opinions was this one.

K wrote:
D. Kane:

https://www.smh.com.au/sport/rugby-union/does-rugby-australia-s-folau-firing-adhere-to-its-own-vision-20190524-p51qrf.html

"For the purpose of what I’ll say next, accept that both Folau and RA are "residents" of NSW; he was a RA employee; and that Folau’s Instagramming happened here too.
The Fair Work Act — itself a piece of Commonwealth, and not NSW legislation — applies to RA’s employment of Folau. Section 351(1) of the Act says an employer such as RA can’t take adverse action against an employee because of the person’s religion, EXCEPT WHERE the action is not unlawful under the anti-discrimination laws in force in the place where the action was taken.
Section 342 says that "adverse action" includes dismissing the employee.

Now every state and territory in Australia, except NSW and South Australia, has enacted some form of laws prohibiting discrimination on the basis of religion, beliefs and the like. Although the federal government — because Australia has ratified the International Covenant on Civil and Political Rights - has the legislative power to prohibit discrimination on the basis of religion and religious beliefs, it hasn’t done so. If Folau had’ve been living in St Kilda and playing for the Melbourne Rebels, things may have been different.

So section 351 of the Act isn’t of any apparent use to Folau — the applicability of that provision is directly dependent on the existence of other laws, preventing religious discrimination in NSW. There are none. But, all isn’t lost ... another section of the Fair Work Act might well assist.

One of the stated objectives of Part 6-4, Division 2 of the Fair Work Act is to give effect to International Labour Organisation Conventions 111 and 158, which were adopted in 1958 and 1982 respectively, then and ratified by Australia in 1973 and 1993.

The ILO is an agency of the United Nations. Under these two instruments of international law, Australia agreed that it would enact laws eliminating religious and other discrimination in employment AND that it would legislate so that employment can’t be terminated on invalid grounds, including because of an employee’s religion.

According to the ILO, such religious discrimination includes discrimination based on a person’s expression of their religious beliefs.

Accordingly, section 772(1) of the Fair Work Act makes it unlawful (subject to some irrelevant exceptions) for an employer to terminate an employee’s employment because of, or for reasons including an employee’s religion. And if an employee’s religion includes a person’s expression of their religious beliefs — "believers" hardly worship in a vacuum — then was Folau terminated for reasons including his religion, or not?

If an employee’s employment is nonetheless terminated because of reasons including those which are statutorily unlawful under section 772(1), the employee has 21 days after the termination, to apply to the Fair Work Commission, asking it to deal with the matter.

Usually, the FWC deals with such matters by way of mediation or conciliation. Those methods of touchy-feely dispute resolution won’t cut the mustard though, in resolving the dispute to the satisfaction of either RA and Folau. So once the FWC agrees, the Act requires it to issue a certificate to that effect. Thereafter, Folau is free to take his unlawful termination case to the Federal Court of Australia.

Remember, we’re dealing with "unlawful" termination, not a guillotining which is merely unfair or harsh. Once unlawful termination is alleged, it’s up to RA to prove the termination wasn’t anything to do with any unlawful reason, or for reasons INCLUDING that unlawful reason.

And if RA can’t prove the termination had nothing at all to do with religion, then the Federal Court has the full jurisdiction to order that RA reinstate Folau; pay him full compensation; pay his (no doubt significant) legal bills; and pay a civil penalty of $50,000 or more.

It’s fair to say that an immense amount hinges on RA being able to absolutely delineate between it having terminated Folau’s employment because he breached RA’s applicable code of conduct by reason of expressing his religious beliefs; but NOT because of his religion, religious beliefs or the expression of those beliefs."
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think positive Libra

Side By Side


Joined: 30 Jun 2005
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PostPosted: Wed Jun 26, 2019 11:16 pm
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if he quoted the bible word for word, it would still be a shit thing to post, but what he did post is good old fashion hate speech, and i cant believe more people dont have a problem with it.

also this was not his first strike was it?

not to mention i cant believe he hasnt dont any of those things himself! glass houses and all!

he was warned about his behaviour, he thought he was invincible, even superman has cryptonite or what ever that rock is called!

but apart from him being a bigot, etc etc, fancy expecting people to pick up the tab for his legal fees when he has earned millions of dollars playing sport! why would anyone help him out! morons.

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David Libra

I dare you to try


Joined: 27 Jul 2003
Location: Andromeda

PostPosted: Thu Jun 27, 2019 1:04 am
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Morrigu wrote:
David wrote:
“As a manifestation of Mr Folau’s religion, he is compelled to communicate the word of God and the message contained within the Bible, the doing of which he considers to be a loving gesture to others,” Folau’s legal team said in its application to the Fair Work Commission.


As an atheist I have no idea what the bible says and I might add no desire to learn!

But I found this article interesting:

Two replaced words crippled Israel Folau’s bible verse defence

In April, Folau shared a post on Instagram which said: “WARNING Drunks, Homosexuals, Adulterers, Liars, Fornicators, Thieves, Atheists, Idolaters HELL AWAITS YOU Repent! Only Jesus Saves”.

Corinthians 6: 9-10, meanwhile says: “Do you not know that the unrighteous will not inherit the kingdom of God? Neither fornicators, nor idolaters, nor adulterers, nor homosexuals, nor sodomites, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners will inherit the kingdom of God”.

Note the difference?

“Everyone has missed the key here, have a look at the post, it says ‘Warning’ and ‘Hell’, but the Bible verse does not mention either word,” a source told The Daily Telegraph.

“Izzy was getting told he’d go to hell if he took down the post, but if he had removed that image and re-posted word for word what the verse says, they couldn’t have sacked him.”

https://www.news.com.au/sport/sports-life/two-replaced-words-crippled-israel-folaus-bible-verse-defence/news-story/5d99538df841c0a98212bf1a186e3f65


That sounds like utter tripe to me, and is getting well into the realm of metaphysics and theological debate. Even as someone who grew up under the strictures of a Christian faith that denied the existence of hell (or, indeed, the immortality of the soul), I know full well what those words mean to Christians who do believe in hellfire.

“Not inheriting the kingdom of God” to many Christians means eternal damnation, and many Bible verses can be interpreted as describing a pure heaven/hell dichotomy. So if you don’t go to heaven, where do you go? Don’t forget that the Catholic compromise of purgatory is itself a totally post-Biblical invention. And surely any Rugby Australia lawyer who tried to argue that Folau’s interpretation of scripture was wrong would be laughed out of the courtroom.

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K 



Joined: 09 Sep 2011


PostPosted: Thu Jun 27, 2019 2:31 am
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^ The other thing is: if someone wants to use English he's just using a translation, and how would they go about arguing for one translation over another? He could say he's using his own translation. Can they ping him for being a 'bad' translator?

e.g.

NIV: "Or do you not know that wrongdoers will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor men who have sex with men nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God."

KJV: "Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God."

GNV: "Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor wantons, nor buggerers, Nor thieves, nor covetous, nor drunkards, nor railers, nor extortioners shall inherit the kingdom of God."

YLT: "have ye not known that the unrighteous the reign of God shall not inherit? be not led astray; neither whoremongers, nor idolaters, nor adulterers, nor effeminate, nor sodomites, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, the reign of God shall inherit."

WYC: "Whether ye know not, that wicked men shall not wield the kingdom of God? Do not ye err; neither lechers, neither men that serve maumets [neither men serving to idols], neither adulterers, neither lechers against kind, neither they that do lechery with men, neither thieves, neither avaricious men [neither covetous men, or niggards], neither men full of drunkenness, neither cursers, neither raveners, shall wield the kingdom of God."
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David Libra

I dare you to try


Joined: 27 Jul 2003
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PostPosted: Thu Jun 27, 2019 12:01 pm
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^ Agreed. It's just a totally farcical claim. No wonder the "source" for this howler wanted to remain anonymous!

I mean, any conceivable definition of "freedom of religion" has nothing to do with "freedom to quote sacred texts verbatim". Religion is, at its core, founded upon interpretation, which is pretty much the reason why we have 10000000000 Christian denominations to begin with. An attempt to legally enshrine one "acceptable" definition of Bible verses would privilege one denomination's interpretation over any other, and thus go as far as to risk the principle of the separation of church and state, lol.

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