THE AG OUT OF HIS DEPTH

In the United Kingdom, furlough, which also was not part of their industrial relations language, became all the rage when employers tried to deal with Covid. They adopted the American definition, except that the furloughed workers were paid: in some instances, 80% of their wage; in some instances, 60%.

Let’s look now at the postulations of the esteemed attorney general: On Monday 20th December, this self-styled descendant of the prophet said “If you are in the category of the listed category of persons…the law will contemplate the circumstances of being what we call absent without leave…being furloughed in effect, running down to not receiving your pay and other consequences…”

Pay close attention. He talks about being absent without leave (another military term) …being furloughed in effect. So, Al Rawi equates being absent without leave as being furloughed. But isn’t being absent without leave at the initiative of the worker. A worker may be entitled to different kinds of leave e.g. maternity, compassionate, vacation, sick and may choose to absent himself from the job without the leave of his employer. But the employer, in this case the government, is taking the initiative to send the worker home. Surely that is absent with leave, except when a worker is on approved leave, she would be receiving her wage.

How the hell can that be the same thing? Not only is the employer (the government) absenting you without leave (sounds ridiculous doesn’t it?) or furloughing you, which in the AG’s fantasy world is the same thing, he goes on to say that the worker will not be paid and, ominously, there will be other consequences.

What are those consequences? We will get to that shortly. So it is clear in the AG’s fevered brain, the furlough he is talking about is the American style, because the British furlough involves paying the workers. But, then, the American furlough involves the workers anticipating that they will return to work within a certain period of time.

On Tuesday 21st December, Al Rawi stated “absence without leave, the furloughing…You can’t be furloughed indefinitely…gets down to the form of abandonment or dismissal.” So Al Rawi’s furlough has no set time period before the workers returns to work; does not involve payment to the workers, but it “gets down to the form of abandonment or dismissal.”

In Al Rawi’s upside down world a worker is sent home by an employer, in an effort to coerce the worker into accepting the employer’s terms and conditions and if the worker does not accept, she is deemed to have abandoned the job or being dismissed. In actual practice, if workers are not rostered to take up duties, they would have been subject to an illegal lockout which is an industrial relations offence.

Doh get no horrors! My head is spinning too. In Al Rawi’s parallel universe job abandonment is the same as dismissal! Really, the AG should know that Job abandonment is at the initiative of the worker. It is the workers’ intention to not return to work and she does not notify the employer of an intention to quit. Dismissal is at the initiative of the employer and it has to conform to the principles and practices of good industrial relations, otherwise it may be deemed to be harsh, oppressive and unjust.

As was stated before, there is no such thing as furlough in our industrial relations environment. What we do have is lay off, which lasts for a definite period of time. In the past the court ruled that a reasonable lay off period was 3 months. A worker then has to return to work. But the government’s intention to refuse to roster non-vaccinated workers can be deemed to be constructive dismissal.

AL Rawi’s shit show seems to have emanated from a hasty, not well thought out knee jerk reaction to the running out of ideas by the government in dealing with vaccine hesitancy. The bill has not yet been brought to parliament and is clearly full of contradictions. Questions of whether it needs a three fifth majority have to be sorted out; whether there are going to have to be amendments to the Industrial Relations Act to accommodate their intention; for instance, Section 10.3 of the Industrial Relations Act states “Notwithstanding anything in this Act or in any other rule of law to the contrary, the Court in the exercise of its powers shall

(a) make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole;

(b) act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations.”

One industrial relations “expert” opines that the government may intend to legislatively define the term furlough – all this has to happen by January 15^th when all employees paid by the government have to be fully vaccinated.

The government, as it is accustomed, is stumbling its way through, bouffing everybody along the way, not having a clue as to the consequences of its actions. But, in the final analysis, they are gambling that, as messy as it might be, they will have their way…if we let them.

While the Attorney General may have exposed his lamentable ignorance of labour laws; while the government may be incompetent; while the Prime Minister may believe his job is to bawl up at people, they are determined to go through with this hammer blow against the working class. They will succeed if we let them. You see, it all comes down to a question of power. Is the power of the people stronger than the people in power? As in all things, time will tell.