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Friday Workplace Briefing

Closing the Gates on Out of Hours Contact with Employees – Federal Government’s Latest Push to Protect Workers

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang discuss closing the gates on out of hours contact with employees and the Federal Governments latest push to protect workers, focusing on the elements, rationale and implementation of the proposed law.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: All right, well look-

Nina Hoang: Go to the main topic.

Andrew Douglas: Main topic, and we don’t have a lot of time on the main topic and it is in some ways quite short, but it is fascinating.

Nina Hoang: It’s a really interesting matter.

Andrew Douglas: So in short, starting off with France and then spreading through most of Europe and in other parts of the world now in places like Kenya as well, there is this recognition that some pre-COVID, but certainly post-COVID and the change in technology and remote working has placed a permeable barrier between work and non-work and so work keeps infiltrating into the non-area.

Nina Hoang: It’s hard to switch off, basically.

Andrew Douglas: And that is in its nature a psychological hazard. So what the Greens have done in the Parliament in Australia is push an amending piece of legislation, which says in simple terms, you may not contact a person outside of their normal working hours, with exceptions.

Nina Hoang: No, it’s not that you can’t contact them, that an employee has the right to not have to look at that stuff during out of work hours, so you can, that’s a weird, they haven’t clarified that. It’s really strange.

Andrew Douglas: Where you’re going to land is, I didn’t ask for this and you did it, workplace right, you got immediately at that stage going to have a general protections claim.

So once you create this as a workplace right and entitlement, it’s going to become a leverage point for litigation, so, can I just say, we’re lawyers. Nina and I will be communicating at 7:30 in the morning. We’ll be communicating sometimes at nine or 10 o’clock at night because you’re on the other side needing stuff done by six o’clock the next morning.

Nina’s got some ways around this that she’ll talk to you about, but can I just say this is a dumb way of trying to fix a problem which can be fixed so many other ways, which is to say, the obvious way to fix this is to say to people and to actually put into legislation, you know, psychological hazards include speaking to people out of hours for matters which aren’t relevant, aren’t part of their normal course of employment. That would be unidentified psychological and so people would reflect.

But by putting arbitrary things saying don’t, then you start getting people like Nina saying, well, I know how to get around this and the way to get around this is a set-off course.

Nina Hoang: Yeah, because what they’ve said is employees don’t have to look at their emails in out of work hours unless there’s an emergency or unless they get what’s called an availability allowance, which they haven’t specified how much, but they should be getting paid this extra amount to basically be on call.

But like I was saying to Andrew before, it’s a silly solution because most employers will just use an offset call because the kinds of employees who would be working in out of hours would be paid well and truly above any award and so they’ll just say, yep, your set-off clause means that your overall salary includes all these things and they’ll just slip the allowance in there. It’s not going to make any difference.

Like I understand the intention behind it and it’s to ensure that employees aren’t negatively or adversely treated if they need time to themselves because you know, there’s examples where employers will basically verbally abuse them ’cause they didn’t respond or something because they were at a family event or whatever, so I can understand like the intention, but I don’t think this is going to solve any problems.

Andrew Douglas: No, can I just say, you know, Australia, unfortunately, when labour governments become highly directionary in the nature of the way work is controlled and there’s some really good policy that sits behind it, but the problem is regulating human behaviour by putting 75 closed doors doesn’t make a workplace work.

New Zealand 15 years ago wrote beautiful corporations securities law where what they did was identified issues of risk and they legislated risk management in a process rather than saying, don’t, don’t, don’t, don’t.

Did it make it harder to prosecute? No, it didn’t make it harder to prosecute.

Were people more aware of the risk of what they were doing? Yes, they were.

Was the legislation this thick compared to this thick? Yes, in New Zealand compared to our courts act, it was a clever way of legislating.

But what we see is governments that come in which have a legislative mandate to change, invariably start writing no. Whether it’s putting an organisation to prosecute unions, liberal side of it, whether it’s and requiring that prosecution or whether it’s labour coming in and protecting workers’ rights, saying no and punishing rarely works in the way you expect it to work.

Nina Hoang: Yeah, I suspect what you’ll see is that if people are acting, employees are acting in that manner anyway, it would be unreasonable management actions so employees would have rights under workers’ comp. But doing this new system, it’s essentially giving them free rights as so long as they pay them this tiny allowance to take advantage of that.

Andrew Douglas: That’s exactly right and isn’t it funny that Nina thought of that first? So no one else has talked about using a set-off clause to get around, but Nina did. That’s why she works for employers.

Nina Hoang: Yeah, unions don’t like me.

Andrew Douglas: Why don’t we go and tell you what-

Nina Hoang: The case study is-

Andrew Douglas: It’s very cool tonight. Give me a white satin shirt. It gives me spots, it’s not linen, but I look like I’m a godlike figure. Sort of ugly, but godlike. Okay, let’s go on.

Nina Hoang: There was much talk about Funds For Fun about how to manage remote work following COVID. FFF built industry-based investment funds for client investment. They often involve offshore industries within the funds. Miriam was the head of the Alternative Energy Fund. It had institutional investors from Australia and Asia. Miriam supervised around 30 staff. She had leaders beneath her and had five direct reports.

She found COVID a great reset for her. She had three young children and an aged and infirmed mom. She was able to work around them and the learning from COVID had brought significant changes in the way she and her team worked. In 2023, FFF did a wide ranging consultation around remote work, protection of home time and work time and published some guidelines. Those guidelines were discussed at Fund Leader level (Miriam’s level).

The consensus was at that level there needed to be clarity around work times and clear boundaries. All had worked in the banking industry before and knew the risks. In December 2023, a new policy was rolled out. It prohibited contact after 8:00 PM at night or on weekends unless there was an emergency. Miriam didn’t attend the rollout of the policy. She knew there were limitations she needed to comply with but was not sure what they were.

Her groups had always embraced flexibility, had overseas investors who communicated every hour of the day and night and she valued the relationship she had created with them by responding as soon as possible. In January of 2024, Miriam launched a sub-fund around wind-generated power. There was a first round invitation to funding and she and Dave, her offsider worked all hours to secure the capital raising.

Dave politely raised a few times that he was struggling with the midnight conferences and deadlines as he had a young family and a wife who was a medical resident and worked odd hours too. On 27th of January, Miriam couldn’t reach Dave. She knew he was alone looking after the kids as he explained by message late Friday night, his wife was working the full weekend shift. She stayed at the hospital. Yes, Saturday was a non-work day, but she was under pressure. She left increasingly agitated voicemails and texts.

She rang one of Dave’s friends at work and got his private number. She rang Dave on his private number and he answered, she told him how unhappy she was, became angry and abusive and Dave hung up. Dave complained to HR (sending text voicemails and recording of a phone call on his private phone). He was very distressed. His 2-year-old daughter had been up all night in the ER with terrible colic.

Andrew Douglas: Colic.

Nina Hoang: Colic.

He had just got her to sleep when he received the call, he was worried about his child and had no sleep himself. Despite everything that happened, he answered her questions up until 11:00 PM the night before, but logged off when his daughter became very unwell. When HR spoke to Miriam, she said she’d never seen or been trained in the policy.

Of course she said that.

Andrew Douglas: Well, she said that, well let’s just accept she’s true. Let’s go and have a look at the questions. Did her failure to be trained in the policy or know it’s content mean she could escape discipline?

Nina Hoang: I feel like strictly speaking under law it would give her some leeway, but it’s pretty obvious-

Andrew Douglas: She’s a leader.

Nina Hoang: That it’s a psychological hazard.

Andrew Douglas: And look, as a leader, one of the things that leaders forget is they’re the people who normally don’t follow policies. But as a matter of organisational structure, they’re the people who are required to lead it. Courts and tribunals don’t like leaders who haven’t read their own policies so the short answer would be they’d say yes but no cigar and she would be in trouble. So a court would support any disciplinary process that was taken, particularly because the egregiously bad behaviour that occurred in the last part of it at a time she knew of the vulnerability of the person.

So as Nina said, it’s not only a psychological hazard, it is a profound psychological, given the knowledge that he had.

Was Miriam’s conduct psychological hazard regardless of the policy? I’ve said yes.

Is it a breach of safety law and who would be liable and what for? More of an interesting question because there’s no doubt at all if Miriam is not inducted and trained, that’s a breach of the safety system Section 21.

Nina Hoang: Yeah, so the organisation would be liable.

Andrew Douglas: Yeah, so the organisation would definitely be liable but actually Miriam’s behaviour, particularly after codes and rigs coming here, but if I looked at New South Wales for instance, you’d be looking at upper category two in New South Wales. You’d be looking at a risk of reckless endangerment here.

Nina Hoang: I don’t know if it would meet reckless endangerment.

Andrew Douglas: Well it meets the criteria, but does it meet the business case for it?

Nina Hoang: But it’s only happened once.

Andrew Douglas: Well, it only has to happened once.

Nina Hoang: No, but in order to be like indifferent doesn’t have to be like to meet the threshold of-

Andrew Douglas: No, indifferent as to the consequence of what they did. So the risk is there, she’s aware of the risk.

Nina Hoang: Of serious injury.

Andrew Douglas: So let’s start again. What is the test for reckless endangerment? It’s subjective, objective. So the first thing is, was she objectively aware of a risk to the person? Yes. Subjectively, with the knowledge of that risk, was she careless about what she did? Did she not take into consideration the knowledge that she had?

Nina Hoang: No, she didn’t.

Andrew Douglas: Yeah. So she meets the criteria and unfortunately recklessness in safety has two objective parts and one subjective part, which makes it really complex.

So the first thing, is this a risk that pose serious risk of harm or injury? Yes, it was. Was that a risk she was aware of subjectively? Mostly yes because she knew A, she shouldn’t be doing it. When she went to get the private phone, she was put on notice of how inappropriate what it was.

And when then she’s abusive to a person and knows he’s home alone with children, not knowing the illness part of it, but has already told her several times, “I can’t do this,” then you’ve got the criteria for reckless endangerment, but it’s not big enough.

Nina Hoang: Yeah, there’s no way they would prosecute her for reckless endangerment.

Andrew Douglas: The reason I want to do this is to say when you’ve got the criteria for reckless endangerment, you’ve got the criteria for summary termination. So I just wanted to, so if you meet the definition of something that put you in jail, even though it wouldn’t be prosecuted, it’s pretty serious isn’t it? Was her, that is Miriam’s behaviour breach of discrimination legislation given she knew Dave’s family responsibilities and that she knew he was at home alone with kids on Friday and Saturday because his wife’s work obligations.

Nina Hoang: Yeah, definitely.

Andrew Douglas: So caring, responsibility, this is sort of direct discrimination.

Nina Hoang: Yeah, she hasn’t accommodated it at all.

Andrew Douglas: No. Again, is there going to be much of a claim that comes out of it?

Nina Hoang: Potentially.

Andrew Douglas: Potentially.

Nina Hoang: Like I think-

Andrew Douglas: The history of it means-

Nina Hoang: I think there’s more chances of him filing this than her getting prosecuted-

Andrew Douglas: There’s no chance of her getting prosecuted. It’s pretty easy to say that. I’m not sure it’s one that many plaintiff lawyers would jump at ’cause the damages are pretty low unless there’s a significant psychological sequence.

Nina Hoang: The discrimination damages are increasing.

Andrew Douglas: But they need the impact.

Nina Hoang: Well, I think if he could, if something happened after this, then I think they would use that.

Andrew Douglas: So if we looked at that, general damages would start at this at around about 30 to 40,000, could be as high as 70 or $80,000. Loss of income, special damages. If you didn’t come back to four or five weeks, used personal, all that sort of stuff. Could be a big claim.

Would Dave have a good workers’ compensation claim? Yes. Made in Victoria, well, is he just stressed by work? No, this is a psychological hazard, so no, go with the claim.

Nina Hoang: It’s definitely unreasonable management.

Andrew Douglas: And what would be the appropriate disciplinary outcome, particularly as we know Dave has not returned to work and feels very distressed and hurt by what happened? I’ve already answered that. When I tell you what the threshold is in safety and that’s what you need to do is you need to look at what is the wrong and if it’s a criminal wrong, I’m afraid that’s serious misconduct.

Nina Hoang: Yeah, so it’s got to be for the unsafe nature, not just because she breached the policy. If breached policy, that’s like a warning.

Andrew Douglas: Yeah, but you’ve got discrimination, you’ve got a crime under safety law, it’s big stuff.

Nina Hoang: To get it to that next level, yeah.

Andrew Douglas: I reckon we hit it today. We did pretty well, even though they swapped the case. Yeah, they swapped, Laura, swapped the case on us. I reckon that might’ve been said not for. Thanks for watching, guys. Thumbs up.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Thanks, everyone.

Nina Hoang: Bye.

Andrew Douglas: Thanks David Carter, bye-bye.

Check this next

Andrew and Nina explain what all the fuss is about regarding the Right to Disconnect, when it becomes law and how to manage it with your employees.