Home' HR Monthly : July 2017 Contents July 2017 HRM magazine 25
religious fundamentalists protesting against
admission of homosexuals into the army.
I think the proper approach to take is, if
you’re going to infringe any freedom, you’ve got
to have a very good reason for it. The onus is
on those who want to justify the infringement.
What the courts do with words such as ‘offend’
and ‘insult’, is to interpret them strictly. The
Federal Court has said that you don’t offend
somebody merely by slighting them. The
conduct has to be something much more serious
than that. That approach to interpretation tries
to narrow the operation of the provision so as to
minimise its impact on freedom of speech.
LG: With access to new technologies, today,
we have many ways to cause offence.
RF: I think it’s best just not to read social media.
LG: You’re not tempted to Tweet?
RF: No. What can you say that’s useful in 140
characters? Although I suppose there are many
famous statements such as ‘Love they neighbour
as thyself’ or ‘I think therefore I am’ that would
have been tweeted.
LG: What about the question of boundaries
and the ex tent to which you can regulate
interpersonal relationships? In HR, there
is an imperative to ensure that a workplace
is functioning effectively and not unfairly
against any one individual employee.
RF: When do you have to step in to protect
people? It’s about understanding that the HR
practitioners have their own functions and limits
on those functions. I imagine there are different
philosophies within the HR field; some pretty
protective, others more laissez faire.
LG: You’ve seen the [employment] cases
that end up in the courts. Do you have an
opinion on conflict resolution?
RF: Fortunately, only a small proportion of
disputes end up in a court. In the High Court it’s
only the hardest of cases. I think that more than
70 per cent of cases that are filed settle before
trial. There’s a lot of negotiating and the courts
are just the tip of the iceberg in terms of what’s
happening in dispute resolution or avoidance.
LG: What has influenced you in you r views
on reaching agreements?
RF: Professor Roger Fisher’s book Getting to
Ye s , was influential. It concerns what is called
“principled or interests-based negotiation”. I
attended Fisher’s cou rse at Harvard in the early
1990s and I adapted the principles in his book
to the first procedures I adopted as president of
the National Native Title Tribunal, in relation to
its mediation processes. Essentially, his approach
was this – rather than positional bargaining,
a negotiating party will begin by asking itself
“what interests am I seeking to advance and
protect, and what interests does the other party
seek to advance or protect?” The negotiating
party then has regard to the range of solutions
that are possible which can accommodate the
two sets of interests according to some criterion
of legitimacy, including fairness. A resolution
of a dispute which does not meet with criteria
of legitimacy, which is unfair or imbalanced, is
likely to be unstable.
LG: Much of AHRI’s focus is to create
a more inclusive and diverse workforce.
You were required to retire at a set age, so
what are your thoughts on a mandatory
RF: I’ve got a rough rule of thu mb that nobody
should be in charge of anything for more
than about 10 years. Institutions need fresh
perspectives. I have no personal problem with it.
I refuse to accept the word ‘retirement’ except in
the sense of retirement from the court. After 30
years of judging, eight and a half as Chief Justice
of the High Court, it’s nice now to have the
flexibility to do a range of things.•••
Don’t miss valuable HR insights from the Hon.
Robert French and other leaders at the AHRI
National Convention and Exhibition in Sydney
21−23 August 2017 (extended program 21−24
August 2017). Registration closes 11 August 2017.
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