Andrew Douglas: I’ve raised this Nina because it drives me crazy because three weeks ago, CFMEU were doing everything that was illegal and wrong that they’ve always done, and nobody was saying anything, except for you John Darcy, a wave to you.

Nina Hoang: That’s true.

Andrew Douglas: But I was a building construction lawyer before I was a workplace lawyer and I was drawn into workplace law ’cause I’d end up in the old Industrial Relations Commission because one of the force majeure clause was always industrial relations, and they’re there, they’re constantly talking about it. I’ve enjoyed workplace more than construction, but they were doing the same thing then.

Nina Hoang: Mm. And I think worse.

Andrew Douglas: Yeah, well, you know back in Norm Gallagher days, I worked on a site when Gallagher was in the BLF, that’s a long, long time ago. But there’s now been several royal commissions and they find the same thing, unlawful-

Nina Hoang: Every time.

Andrew Douglas: Unlawful behaviour, corruption…

Nina Hoang: Involvement of biker gangs.

Andrew Douglas: Yeah.

Nina Hoang: They found that before.

Andrew Douglas: Can I say in the involvement of the biker gang is a notorious thing. It’s not something which has been drawn out of a back cupboard.

Nina Hoang: No.

Andrew Douglas: Everybody knows. We know that there are a variety of different suppliers in the building industry who are openly part of organised crime.

Nina Hoang: Yeah.

Nina Hoang: So for everyone to be shouting so loudly, you got to go, well now look, about 20 years ago, the six big builders had a deal and they used to go and sit in a barrister’s office and they would work out what the enterprise agreement would be with the union, they did that to exclude all other major builders, okay? That’s what happened.

And they put high rates. And so remember when some blaming the unions for high rates, I just want to start with what this, these builders realised if they set these higher rates, the mezzanine builders, the ones at the middle level, they couldn’t keep up, they couldn’t compete. And so those builders dominated in Victoria.

Now they did that with the agreement of, who do you think? The unions. And so what we ended up with was patent agreements. But the problem is the patent agreements cannot be, nobody can afford them except major builders.

So it was a way of the building industry ensuring that the biggest builders got bigger, and the middle builders couldn’t compete. It wasn’t just a union thing, it was something that was done by builders as well. And the MBA sat by, and let it happen. Even though they represent every other builder and those six builders, they let it happen. And they have consistently let the breaches of the union go, over this period of time.

Now imagine what happens if the MBA with the approval, all of them said, no. No, we’re not going to agree to it. If they hadn’t done that 20 years ago, then the AWU Construction agreements and the CFMEU would be the same.

But they’re not. And there’s a reason they’re not. And that is because the CFMEU was licenced to do that by major builders and permitted to do it by the MBA. So when you do something that’s essentially corrupt in that process, you’re inviting in greater corruption along the way.

Nina Hoang: Mm.

Andrew Douglas: Now where does that mean going forward for all of us? I just think we have to be candid that this is bullsh*t. You know, Victoria is unaffordable to build anything. Anyone who builds in Victoria, like the Age building was a great example. The Age built in two places, Sydney and Melbourne. Melbourne’s a hundred million dollars more.

Nina Hoang: Oh my gosh.

Andrew Douglas: Yeah. Now I’m making that up, but it’s something like that. But it is huge. The difference in cost of doing buildings in Melbourne is massive. But everyone’s been involved in it. Everyone’s allowed it to happen.

Nina Hoang: They’re both complicit.

Andrew Douglas: It’s not just government. This is builders, it’s unions, and it’s all of us just saying, we don’t want this anymore. We want to stop this.

Nina Hoang: But isn’t it, I agree with all that, like there’s a history there and it’s a bit hypocritical for everyone to be like, oh my gosh, how can they possibly do this? None of us knew about it. Like everyone knew about it. Isn’t it good that something is finally being done?

Andrew Douglas: I think it’s the same as what was done last time. I think it’s the same.

Nina Hoang: Was it though?

Andrew Douglas: The BLF-

Nina Hoang: I feel like they just talked about it, they didn’t actually do anything.

Andrew Douglas: No, the BLF were deregistered. So they actually deregistered the BLF Union, which is the forerunner of the CFMEU, okay? It was and they weren’t allowed to serve in any capacity.

Nina Hoang: Ah.

Andrew Douglas: But within years, the same thing just happened again. And the answer is, well if there’s a dollar in it, everyone gets involved.

Now we’ve always known there’s three major industries of which there’s incredible corruption that sat there. One was the maritime industry, one was the meat industry, which is not as bad as it used to be. And the other is construction. They’ve always been corrupt. But at some stage we need government, people, business, everyone just to say, no. And there does need to be review of actually what are the rates and the current enterprise agreements? ‘Cause they’re not affordable.

Nina Hoang: Well, I think the Fair Work Ombudsman is doing a review of enterprise agreements

Andrew Douglas: Yeah.

Nina Hoang: And there are like the Fair Work Commission is also doing reviews.

Andrew Douglas: But do you really think they’re going to reduce base rates? I don’t think so. And so when those high base rates come to-

Nina Hoang: No, but I think if they invalidate some agreements, if they’ve been made through unlawful means, then that’s a start.

Andrew Douglas: There’s 20% increase over four years.

Nina Hoang: Yeah.

Andrew Douglas: Like 20% increase. It’s just rubbish. Average agreements at the moment are going through at 12% over a three year period. This is 20%, which is aggregational going forward. So it’s worth 26% total cost, and it’s been approved.

Nina Hoang: Well, I mean-

Andrew Douglas: How did the MBA ever sit there and go, oh yeah, we’ll approve that. Who’s the consumer? Have a look at the building industry at the moment. Highest level of insolvency of any industry in Australia. Why do they think that’s occurring? ‘Cause the cost of both suppliers and labour is so high.

Nina Hoang: Mm.

Andrew Douglas: Anyway, look, I know it’s a bit of a rant, but I just-

Nina Hoang: Yeah.

Andrew Douglas: I wanted to reset the register a little bit because what we’re seeing is an argument around unions and government, and in fact the complicity of business is just as large and has allowed it to happen. This should not have happened. We want to change it. We’ve got to dig a bit deeper in ourselves and say no, we’re willing to have a fight about this.
Actually let’s look at the last enterprise agreement, let’s scrap it, it’s rubbish. It was already too high, now it’s crazy too high.

Nina Hoang: I know you say that, but like thinking about some of the builders like that we’ve spoke to, when you’re smaller, you just can’t get staff if you’re not going on to these enterprise agreements because of the crazy rates.

Andrew Douglas: I know, but that’s how the larger business-

Nina Hoang: So, like practically, how do people actually stand up and say no?

Andrew Douglas: I don’t know. But that’s what I’m saying to you, the larger business have an invested right in getting these rates, ’cause it stops new business.

Nina Hoang: Yeah.

Andrew Douglas: Okay. Anyway, look that’s, I think it’s time we do occasionally address the elephant in the room. And this time the CFMEU stuff really need to be spoken about. Why don’t we go onto the case study?

Nina Hoang: Dave worked as a salesperson to clothing suppliers for a startup YR Voice, an application-

Andrew Douglas: Your Voice, Your Voice.

Nina Hoang: Oh.

An application that allowed you to hunt for clothes based on your style. It allowed people to complete a quiz where they could pick styles and clothing they liked and the algorithm would increasingly and accurately suggest clothing that best suited a person.

I can’t see ’cause of the thing.

Based on their style, I think it was.

Andrew Douglas: Yeah, it was, yep.

Nina Hoang: Dave’s job was demanding, he dealt with wholesalers and retailers to find the latest fashionable clothes. Your Voice had a demographic that was aimed at women between the ages of 30 to 40, with high disposable incomes and who were living in cities. Dave’s contract said he had to work 38 hours per week plus reasonable additional hours. He was paid over the award and had significant incentives. His market responsibility included Europe-

Andrew Douglas: Asia.

Nina Hoang: And Australia (correction: US)?

Andrew Douglas: Yep.

Nina Hoang: Therefore, many conversations-

I can read, there’s this thing on the screen, that’s why.

Andrew Douglas: Yeah there is, HP Wolf Security has just turned up on-

Nina Hoang: Therefore many conversations and emails fell outside Melbourne time. Dave had raised the difficult hours with his boss, Lucy. She just said, “Do the best you can”.

Lucy started to get feedback from suppliers and from the warehouse manager who was trying to fulfil the orders that Dave didn’t return calls in a timely manner even when they were big issues like missing stock.

Lucy looked at Dave’s work log and it was apparent he had dramatically reduced his out of work hours and was not responding to many suppliers until the following day or after. Your Voice was built around their instantaneous support to both suppliers and clients. This was a significant breach of their values and undermined their business.

Lucy spoke to Dave and he said he will not be responding to email and calls out of hours. Lucy reminded him of his contract and he told her to “Get stuffed. This business is killing me.” Lucy explained today he must respond in the same day to suppliers and manage his work to meet the client demands. He said he would try.

A review of his logs over the next week and supplying complaints revealed he had not changed the way he worked in any way. Lucy arranged a meeting with a show cause letter, he attended and said he felt he was being bullied, and she listened to what he had to say and then terminated his employment for serious misconduct.

Andrew Douglas: Okay. Assuming the process by Lucy was procedurally fair, could Dave bring a successful workers’ compensation claim?

Nina Hoang: Well he, yes I think he could, because there was clear psychological hazards there.

Andrew Douglas: Yeah.

Nina Hoang: And they didn’t do anything to address it.

Andrew Douglas: Okay. So can I just explain, ’cause as always Nina is right. The actual performance management part of it’s not the relevant part for this. Even if you could prove reasonable management action, the behaviours before, because they’re not part of management, are tested on the subjective experience, what the person felt, so as long as the doctor hit DSM five and said yes, it’s-

Nina Hoang: DSM five?

Andrew Douglas: Yes. Diagnostical Statistic Manual.

Nina Hoang: Oh, okay.

Andrew Douglas: So as long as they could prove it was a psychological injury, then yes it would be accepted.

Does Dave have a good general protections claim? And if so, why?

Nina Hoang: Was it, is this hitting at the right to disconnect?

Andrew Douglas: Yes, the right to disconnect.

Nina Hoang: Oh.

Andrew Douglas: Yeah, yeah. So this-

Nina Hoang: Well this depends, ’cause it’s not in effect yet.

Andrew Douglas: No, no. Well let’s say it is.

Nina Hoang: Oh, okay. ‘Cause I was like-

Andrew Douglas: Yeah, yeah.

Nina Hoang: Is this a trick question?

Andrew Douglas: Let’s just say.

Nina Hoang: About lawyers as well?

Andrew Douglas: It was a trick question, yeah, no, can I just say

Nina Hoang: ‘Cause I kind of like that.

Andrew Douglas: To you that, so the right to disconnect is coming through-

Nina Hoang: 26th of August.

Andrew Douglas: 26th of August.

Nina Hoang: For big businesses, and then for small businesses it’s next year 26th of August.

Andrew Douglas: Yeah. So the point here is big business, got Dave, he’s raised complaints about working outside of normal hours. He has hours of work he’s expected to work. He exercises his right not to respond during that period of time.

Nina Hoang: Yeah, and we’re assuming he’s not paid extra like a allowance to respond for out of hour work hours.

Andrew Douglas: That’s right.

Nina Hoang: Yeah. So then he’s got, he’s exercised that right, they-

Andrew Douglas: It’s a workman, so workplace, right?

Nina Hoang: Yeah, and she’s counselled him, and then also disciplined him. Oh sorry, terminated him for it, sorry.

Andrew Douglas: Yeah.

Nina Hoang: So yeah. Good general protections claim.

Andrew Douglas: Okay so now, so the choices here is, as Nina has said, first you go to the contract. So it’s 38 hours plus reasonable hours. So there’s an argument that there is compensation in there for working because it’s a rounded up rate. So if you could show it was a rounded up rate that would count amongst regular work, and the nature of the job requires it, then the right to disconnect probably doesn’t apply.

Nina Hoang: But I think like, I, he’s a sales person, he is not a senior person.

Andrew Douglas: Yep.

Nina Hoang: So, you can’t say there’s an expectation that you’d have to work these crazy hours at all times. Like I think that’s a bit-

Andrew Douglas: So what, and I guess my point-

Nina Hoang: Unfair.

Andrew Douglas: About this is-

Nina Hoang: It’s not unreasonable request.

Andrew Douglas: Yeah. So what you’ve really got to do is say, well what does it look like? And then you’ve got to build that into the contract and say, look, there will be regular out of hours sort of work and here’s what the expectation is during this period of time-

Nina Hoang: Yeah.

Andrew Douglas: And here’s the compensation. So the person goes, “I get what it is”. So if you’re not required to work more than three hours out of, in any day, and you’re paid as if you were going to get that, then you don’t have a right to disconnect. But look, that just sort of shows you how it’s going to work and how it can be complex. At a more senior level it’s a lot easier.

Nina Hoang: Yeah.

Andrew Douglas: At a more junior level like that, you go to the award, you look at what payment is, you look what reasonable overtime is it done by the day or is it done by a week?

Nina Hoang: And look at the right to disconnect clause, ’cause it has very specific requirements about what people have to do and how you have to put it in place as well.

Andrew Douglas: Yep.

Nina Hoang: Also general protections a right to a safe workplace as well.

Andrew Douglas: Yeah, it is, it is. And he’s raised complaints about that as well.

Nina Hoang: Yeah.

Andrew Douglas: So, and that brings us down to the last part, was there a wrong under safety law?

Nina Hoang: Yes.

Andrew Douglas: And I’ve got to tell you there was.

Nina Hoang: Yeah, there was heaps of psychological hazards.

Andrew Douglas: Yeah, lots of psychological hazards, a failure to consult. So this is the other part.

Nina Hoang: Yes.

Andrew Douglas: A failure to do an assessment in the process. So you identify the hazard, that hazard’s been, there’s no risk assessment process that’s been undertaken. So no control has been introduced to assist, and there’s no clarity about what success does look like. And so he goes, no, I’m not doing this. It’s not my job.

Nina Hoang: But also they’re aware of the harm as well. It’s a high risk, but they’re also aware that it is harming him and they haven’t stepped in as well. So I feel like it’s aggravated.

Andrew Douglas: Yep. Okay. Would they be prosecuting? No. Okay. So that’s, I think that’s-

Nina Hoang: Yeah.

Andrew Douglas: I think it’s very unlikely to be prosecuted, but it is a wrong, and therefore it’s an actionable wrong. And that’s the third question feeds into the second, which is, “Is it a good general protections claim?”

Nina Hoang: Yes.

Andrew Douglas: Absolutely. And it would be expensive. I think that’s it, I don’t think I had any more questions on that one.

Nina Hoang: No, that’s it.

Andrew Douglas: Look, thanks very much Nina. I thought this week’s fun in some ways ’cause I dealt with a few of-

Nina Hoang: You like to rant.

Andrew Douglas: I like, no, no, I don’t like to rant, I just like to remind people why we’re in a place rather than just be caught up in words of high dungeon about how terrible union are. Like many circumstances, like some of the employees, you create your own hazards, and CFMEU is an example of a hazard we created as a society and as an organisation, who supports them. But I thought the cases were illustrated for the types of frustrations we, which is why-

Nina Hoang: Yeah.

Andrew Douglas: We both chose them.

Nina Hoang: Very commonly.

Andrew Douglas: We picked a whole lot of cases which deal with daily frustrations and the mistakes people make when they become overly sensitised. Okay?

Nina Hoang: All right.

Andrew Douglas: Good.

Nina Hoang: Thanks everyone.

Andrew Douglas: Thumbs up. Thank you very much.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Cheers, bye-bye.

Nina Hoang: Bye.