FWC’s Michael Lawler ‘said he would work while on sick leave’

How a Fair Work conference sparked a complaint against the commission’s vice-president, Michael Lawler.

Kathy Jackson and Michael Lawler arrive at the Federal Court in Sydney. Picture: John Feder

On a hot day in May last year, two women sat in a black Honda parked overlooking a harbour view in a far-flung part of Australia. They had a mobile phone between them, set to speakerphone as they waited on a conference call with the Fair Work Commission. One woman was an industrial relations advocate, the other her client. The client was nervous even though by most standards her fight was a small one, for a few weeks of lost annual leave.

Neither woman knew she was about to dial into a call that would reverberate throughout the following year, tapping into the Health Services Union allegations against the high-profile trade unionist and former media darling Kathy Jackson and her powerful and dashing partner Michael Lawler — a former barrister and a vice-president of Fair Work whose activities in Jackson’s case would bring him under scrutiny for potential conflicts of interest, perceptions of misbehaviour and questions over eight months of fully paid sick leave in one year, much of it overlapping Jackson’s legal fights.

GRAPHIC: A letter from the complainant

NEWS: Lawler ‘belittled advocate’

It was 9.30 in the morning on May 27 when the phone conference began. The women clicked on; His Honour vice-president Lawler was on the line from Sydney and he took a few moments to explain that he was there simply to see if he could assist in facilitating an agreement. It was hard to hear Lawler on the phone, according to an 11-page formal complaint about his behaviour that was filed just over a week later by the industrial relations advocate who was sitting in the car with her client.

Dominating the proceedings, vice-president Lawler spent a considerable amount of time debating what section of the Fair Work Act the hearing came under. According to allegations in the complaint, Mr Lawler repeatedly said he did not understand the application, cutting off the advocate when she attempted to respond.

After that, things went seriously downhill. According to the advocate’s statement of complaint, Mr Lawler proposed a resolution, which the advocate accepted on the basis that her client could seek additional and separate legal advice before agreeing.

At this point, according to the complaint, Mr Law­ler addressed himself to the client (who was listening on speakerphone), declaring: “OK I am going to do what I have never done in 10 years … I can tell you (that) your advocate ... is utterly incompetent.”

The formal complaint describes what happened next: “Then His Honour said he was ‘happy, on a voluntary basis, to offer to assist you’ (my client), ‘even if it means dipping into my own sick leave’. The VP then stated, ‘I am warning you ….’

“His Honour proceeded on an extended invective about the hopelessness of my client’s case. In further support of his stated expertise, His Honour stated he was ‘a big fish in a very tiny pond’ and ‘2nd in charge of the FWC’. Whilst repeating, ‘I am not claiming to be God’s gift to the law.’ ”

According to the complaint, Lawler went on to tell the client that she might require a lawyer in addition to the industrial relations advocate she was appearing with. He commenced a diatribe about the cost of lawyers. The complaint continues: “To this end, the VP went into the minutiae of how those costs are arrived at including how much it costs lawyers to run their offices/practising certificates, etc. His Honour identified the costs ‘attaching to the retaining of a good QC’ citing an example of a friend of his, a QC whom he named (maybe Mr Good or Mr Wood — we did not properly catch the name) who charges $12K a day and doesn’t care if the matter falls over, he just charges and there is a queue of people just lining up to get hurt. His Honour identified it would ‘cost $20K to even get to the doorstep of the court’.

“His Honour demanded to know if my client had $20K … (He) pointed out when she got to court, it would still cost her another $2K a day for a ‘baby barrister’. His Honour illustrated all of this for us by reminding us he earned a huge remuneration as paid to him by parliament, and then revealed: ‘My partner and I are involved in legal matters and we still have to dip into the mortgage.’ ”

The complaint continues: “I estimate His Honour must have talked nonstop for a good 10-15 minutes, maybe more. When His Honour finally stopped, it was hard to know what to say. There was a period of silence and I think His Honour thought we had dropped out … I acknowledged His Honour’s concerns, mindful there was nothing to be gained by trying to reason with him … I further stated to His Honour that I wished to protest his characterisation of me as ‘utterly incompetent’ — I considered in light of all the circumstances, few (if any) of which the VP was accurately informed on, such a characterisation was unfair and ill-conceived.

“His Honour asked me what was wrong with what he had said, noting it was ‘only between us’, he had ‘not said it in open conference, or I haven’t gone to the media’. Indeed I considered the media reference as vaguely threatening — but again I recognised the futility of trying to ‘reason’ with the VP.”

According to the complaint, what followed was the vice-president’s announcement the conference had failed. He would advise the other side of this. The advocate reminded Mr Lawler that her client was willing to seek advice on a deed earlier proposed and to give it serious consideration. “His Honour seemed caught off guard, and stumbled over various matters. Including telling us why it was convenient … for the FWC to sign off on it in one sitting.”

After some further confusion about which section of the act the conference came under, Lawler rang off.

The complaint continues: “(I) refrained from giving my client the full benefit of my concerns. I noted I would move immediately to write up the events as I remembered them. To that end I sought to clarify with my client a couple of points which I was unsure I had correctly understood (ie: the VP offering to take sick leave to assist her).

“I also indicated to my client in view of His Honour’s expressed concerns about my competency, it was probably appropriate, in all the circumstances, that she take independent legal advice as part of reviewing the deed and electing whether to sign it or not.”

Three days after the conference (later summarised in the complaint), the advocate — by now the complainant — wrote to Lawler, copying in FWC president Justice Iain Ross, on May 30, 2014.

“Dear Sir, I am extending the courtesy of notifying you that I am proceeding with a formal complaint against your ‘professional’ behaviour during the course of that (May 27, 2014) conference. While I respect you are a ‘big fish in a very tiny pond’ (your words) and ‘second in charge’ (your words), I also note your repeated concession, namely, you do not claim to be ‘God’s gift to the law’. It is the essence of that insight I will be pursuing in my complaint.

“Your conduct was unprofessional and improper and in my respectful view, robs your position of the gravitas and respect it is due. In every sense, and as old fashioned as it may seem, it was an abuse of power. Relevantly, in part, I note your reference to your own experience of having to ‘dip into you/your partner’s mortgage to pay legal fees for issues you currently have on foot.

“Unrelated as your own experiences are to my client, I have sought to explain away some of your conduct to the stress that ‘dipping’ appears to be causing you. May I respectfully suggest rather than using your ‘sick leave’ to assist my client (as you bizarrely offered) you maximise it by taking it to reflect on the import of your position and the manner in which you conduct same.

“I am cognisant that taking this initiative prior (to) the matter formally concluding is ‘outrageous’ and may act to prejudice my client.

“However, having discussed it with my client and taken my own independent advice, I am of the view your own behaviour was so outrageous my client has already been seriously prejudiced and the incident warrants immediate action.”

In the conclusion to her later official statement of complaint, the advocate says that Mr Lawler’s conduct, both in his analysis of the matter before him and the manner in which he ran the conference, was both unfair and improper. She believed that he had formed a preliminary judgment of the application, “and there was nothing that could be construed impartial about his conduct thereafter”.

The complainant alleged that Lawler had pressed her client to settle the matter solely to pay ‘alleged outstanding fees’ to the complainant — something the complainant described as particularly egregious. “As the VP rightly noted, he was unaware of what our arrangement is. As noted, in encouraging her in this regard, His Honour relied on giving advice that was both ill-informed and wrongheaded.”

The complainant finished by expressing her concerns about the likely future impact of laying a complaint against Mr Lawler. “I conclude by reinforcing my laying of this complaint was because the conduct of the VP can be explained in no other terms than an abuse of power. In view of His Honour’s behaviour, and in view of my subsequent complaint, I am not confident I could ever appear before His Honour again, comfortable that he would act impartially. The failure to act impartially affects my client more than me. Accordingly, I respectfully notify the FWC in the event I find myself before His Honour again, I will be making a formal application he recuse himself on the grounds of actual or apprehension of bias.”

And with that, the complaint was under way. It bounced through the ether into the FWC computers on June 13. The complainant included a new covering letter to Justice Ross with her statement, to say that she had “been made aware the vice-president has gone off on extended sick leave”.

It marked the beginning of a year-long battle to get some sort of resolution regarding Mr Lawler, still to no avail. His many months of sick leave would put him beyond reach. The complainant did not give up. She wrote to Justice Ross on September 10 last year expressing concerns about Mr Lawler’s behaviour both inside and outside the FWC.

“I refer to my letters to you dated 30 May 2014 and 13 June 2014. I was advised by the Fair Work Commission on or about 4 June 2014 that Vice President Lawler had gone off on extended sick leave. Other than this advice and subsequent notice from your Associate that you were on leave until the end of June 2014, I have heard nothing from the FWC. It is unclear to me whether this reflects the fact that the complaint is under investigation or whether it has been dismissed.

“In the absence of that knowledge I confirm my original concern about the integrity and personal behaviour of the Vice President at our conference …. While the Vice President’s conduct in our conference appeared inexplicable at the time, it seems that the cumulative issues attaching themselves to the VP’s conduct whilst on sick leave (including, as reported, acting for his partner in a contentious legal proceedings involving a union) supports my original complaint. And this further conduct must eventually weaken public confidence in the FWC.”

On September 25, 2014, the complainant wrote again to Justice Ross about the amount of time that had gone by. As perhaps the only person outside the FWC who knew at the time that Michael Lawler was on extended sick leave, she homed in on reports that showed him clearly out and about.

“If the Vice President is on sick leave I presume he continues to ­receive the very generous remuneration he repeatedly and inappropriately drew attention to in our conference call (as set out in my statement).

“Yet I am aware from newspaper reports that despite the Vice President being on sick leave, he continues to function, apparently normally, in the public domain. For example he appeared in a representative capacity in the Federal Court on 19 or 20 June 2014 ...

“The Commission has provided no advice as to when the Vice President’s leave might expire. Nor has any information been forthcoming on any steps taken to contact the Vice President in writing or otherwise during his leave.

“It is my understanding public officials (even very senior ones) may have their leave cancelled or suspended, for valid operational reasons. This includes, presumably, recall to answer the charges in my original complaint and even to inquire into apparent high-level public functioning during a period of sick leave.”

Justice Ross replied on September 29 to say the vice-president was on sick leave and it would be inappropriate to raise the issues with him until he returned to work. He advised the complainant that alternative options for her to pursue her complaint included section 641A of the Fair Work Act, which allows for a complaint to be investigated by the minister.

The complainant replied to Justice Ross on October 6 to say that she preferred the complaint be handled by the FWC and that it was not her intention to pursue someone when they were on genuine sick leave.

In December last year Justice Lawler returned to work and in the next few months delivered less than a dozen mostly small-case decisions as well as processing several agreed enterprise agreements.

On March 13 this year, the complainant wrote again to Justice Ross requesting an update on the status of her complaint. She noted that Mr Lawler had been back at work for several months but had not responded to her complaint.

“The VP’s workload does not appear to be oppressive and I envisage this would have allowed him the time to consider the issues raised in my complaint, and respond to same,” she wrote.

The complainant queried whether Mr Lawler had played a role in devising the code of conduct for FWC members, pursuant to the 2009 Fair Work Act. “I note the VP repeatedly impressed on my client and I … that he was ‘a big fish in a tiny pond, second in charge of the FWC’ and ‘remunerated very well by the government’ in his role.

“Accordingly I believe it is reasonable to presume the VP was involved in consultation in the development of the Code of Conduct …”

She argued that the objectives were to uphold public confidence in the commission and in the administration of justice, to enhance respect for the commission and protect its reputation. The three basic principles for testing a member’s behaviour were impartiality, independence, and integrity and personal behaviour.

“Inadvertently, my complaint raises many issues going directly to the principle of ‘public confidence’ … can I please ask for an update in this long-outstanding matter, including if nothing has happened, how you propose to manage the complaint?”

On May 29, Justice Ross replied again, explaining that vice-president Lawler had resumed a new period of extended sick leave and that it was part of the process of investigating a complaint relating to member conduct, that the member complained of had an opportunity to respond. With Mr Lawler again on sick leave, this was inappropriate. However, there had been changes to Michael Lawler’s work. “As an interim measure I have taken steps to ensure Vice President Lawler no longer deals with s. 372 applications.”

There was no indication of whether Lawler had been asked to respond to the complaint within the walls of the FWC and whether he had done so.

In a final letter to the complainant, sent just a week ago on June 13, Justice Ross repeated that it was inappropriate to ask Mr Lawler to provide an interim response while he was on sick leave.

He rejected the complainant’s reference to Michael Lawler’s salary as a waste of public money as a basis for attacking the FWC’s management of the complaint.

“I did not appoint the Vice President and have no power to remove him from office, as is plainly apparent from a reading of the Fair Work Act 2009,” he wrote.

Two days after this letter was sent, Kathy Jackson was back in the Federal Court for an interlocutory hearing, with Michael Lawler on her arm. In the courtroom, Mr Lawler spent his time listening intently and bounding back and forth to the bar table with scribbled notes for Jackson’s barrister. In between, he was outside smoking in front of the cameras. It almost seemed like a public salute.

With Michael Lawler still on sick leave, the complainant’s year-long concerns remain untended on the table at the FWC.

Kathy Jackson, however, is due back in court on Monday.