Andrew Douglas: Let’s go off to the main topic now. I’ve got a few things to say before you tell the truth, all right?

Nina Hoang: Before I tell the truth?

Andrew Douglas: Can I say the AMIU, which is the Meat Industry Union, is not a tough union. In fact, if I look across the country and we act across the country for meat processing outside of South Australia, there’s not a lot of representation of the union, because that’s a stronghold. And even then, they’re struggling terribly to get enterprise agreements up. So, JB, Teys, they’re both, they’re very big and the unions got into them. But one of the things you don’t do with a union, is poke it with a stick. So, you don’t do stupid things like stand-down delegates for having slightly too long of meetings.

Nina Hoang: No, it was for slightly too long smoko break.

Andrew Douglas: A smoko break but-

Nina Hoang: It was more than the eight minutes.

Andrew Douglas: Well, no, it was eight minutes, but they were having a meeting. So, an authorised meeting in the eight minutes.

Nina Hoang: Yeah but like, that’s what they-

Andrew Douglas: Oh no, but as Nina goes through the facts, what you’ll see is an organisation, who just created their own problem. Unions, particularly weaker unions in large country-based areas, don’t have leverage, okay? And if you are reasonable with them, they don’t want to have a fight. Because they know in most fights, a whole group of people will say, “No, we don’t like unions.”

Nina Hoang: Hmm.

Andrew Douglas: And this union wanted greater presentations, smoko rooms, notice boards. All Teys had to do was sit down with the organiser and get the organiser in with the delegate and say, “We recognise your right, we’re happy for you to put a notice board up and a smoko room. And if once a month you want to get up and address the guys for 10 minutes, cool by us.” It would’ve gone away. But Nina tell the story.

Nina Hoang: Yeah, so, they’ve brought general protections claim on the basis of discrimination for engaging industrial activity and also for breach of delegates rights. But it’s very convoluted. But they brought it all the way back to when they first issued a notice for reasonable communication. Immediately, after Teys said, “Oh, you took too long a smoker break, so, we are standing you down.” And they-

Andrew Douglas: So, can I use-

Nina Hoang: They issued them a show cause letter as well.

Andrew Douglas: Yeah, so, can I just give an example?

Nina Hoang: It’s crazy!

Andrew Douglas: For every enterprise agreement time, unionised site sake and we have meetings. And we always send them a letter and say, “The meeting will be between this time and this time. If it goes over, it will not be approved. You won’t be paid for it.” They always go over it. We always know that’s going to happen, ’cause that’s industrial life. So, you’d leave it alone. You’d go and talk to him and say, “Look, we won’t approve any other meetings if you won’t comply.” That’s what we always do. It’s the next increasing of pressure on it. They stood him down for going over the smoko break. Not only that, they gave him a show cause letter.

Nina Hoang: Yeah.

Andrew Douglas: Which after getting some legal advice, clearly they-

Nina Hoang: Yeah, they withdrew it.

Andrew Douglas: They withdrew. And the word dumb was printed, tattooed on every manager’s forehead for a week afterwards. That’s not true, that bit I made up.

Nina Hoang: So, things kind of settled down for a bit. But then, the union came back and asked for more things. So, under the delegates rights, they’re allowed to ask for reasonable communication with members and potential members and access to workplace facilities. So, they said, “We want notice boards.” And they said, “You can have one notice board to put union staff on.” Then they wrote and said, “We want to be part of inductions with staff and we want to stand up in the lunchroom and be able to talk to members about union issues. And also, we want all five notice boards again.” Teys then react kindly to that and kept saying no.

Andrew Douglas: So, can I just say? So, when you’re dealing with the union, that’s called ambit, okay?

Nina Hoang: Hmm.

Andrew Douglas: So, whenever you negotiate with the union, they’ll always ask for 10% rise a year. They’ll ask for a whole body of things that they want. The dumb person says no. The smart person says, “Can we have a conversation?” And a whole lot of the ambit just falls away.

Nina Hoang: Yeah, I think it could’ve dug in, done through a negotiation.

Andrew Douglas: Oh!

Nina Hoang: But they kind of just dug in their heels and then turned around and said, “Hey, you’re breaching lawful and reasonable directions, because you’re using a different channel to raise your issues. You can only use your delegates email. If you don’t do that, we are going to discipline you.”

Andrew Douglas: See, that’s it. Just keep poking the bear, keep poking.

Nina Hoang: Yeah, the union obviously brought the case and they’re now asking the federal court to make declarations that essentially the delegate’s rights will extend to participating in all inductions, that they can discuss union issues in lunch rooms and a whole bunch of other staff.

Andrew Douglas: But Nina, I mean, the part that bothers me about this, is that none of the rest of it bothers me, but the part that bothers me is the induction part, okay?

Nina Hoang: Yeah, but I also feel like standing up in lunchroom, subjecting it to people who don’t want to involved-

Andrew Douglas: Oh, no, all that could have been dealt with though. Does that make sense?

Nina Hoang: Yeah.

Andrew Douglas: But the issue here is it would be lovely if all judges came from the same political party, the same background. But now, Teys have thrown themselves in the middle of a ring where they don’t know who they’re boxing.

Nina Hoang: Yeah.

Andrew Douglas: And they may be boxing someone who’s easy to beat up, or they may be boxing Muhammad Ali. They don’t know who they’re fighting.

Nina Hoang: Yeah.

Andrew Douglas: And to put such an issue, such an important issue around delegate rights at risk where they may never appeal it, so, we’ll have a piece of law sitting out there-

Nina Hoang: Yeah, that will affect everyone!

Andrew Douglas: It will affect everyone. It’s just incredibly disappointing. And the process was so incredibly dumb to get there. And you can’t help thinking, there’s been some incredibly poor advice, which has been supporting a narrative, “We need to beat the union up.”

Nina Hoang: Yeah.

Andrew Douglas: And the answer is, anyone who tries to beat a union up, brings on a fight. ‘Cause that’s actually what unions do. They’re better at fighting than the rest of us. That’s what they do for a living.

Nina Hoang: Yeah.

Andrew Douglas: What they’re not good at doing, is winning people’s heart and souls. If you are generous, simple and clear and you run a communication argument with your trusted employees, you say them, “We don’t want you in your lunchroom.” They could have done all that stuff, but they didn’t. They picked and picked and picked and prodded and prodded and prodded. Now, they’ve got an application, which in some parts, they shouldn’t win, some parts, they’re going to lose without a doubt. All they had to do is shut up. And if they lose, if they win, so, here they have their great victory, they win. They come and have their first, you think the union’s going to leave it alone at that?

Nina Hoang: No.

Andrew Douglas: The union will then appeal. ‘Cause they have no fear of appealing. And then, we’ve got three years more of uncertainty sitting around this case. The whole problem with new bits of legislation, is you don’t pick fights you’re not going to definitely win.

Nina Hoang: Yeah.

Andrew Douglas: That’s the rule.

Nina Hoang: I think this case can be very closely watched by everyone.

Andrew Douglas: Yeah, well, certainly by us anyway. And I’m sorry for Teys if there’s anyone there, who cared for me once and probably don’t anymore, sorry about picking on you. Why don’t we go to the case study?

Nina Hoang: Yep, so, “Naomi had worked with City Work, a large construction business for over 20 years. She was a Building Estimator and trusted. Over the past two years, her eldest son, now 17, had struggled at school with his mental health. She was aware that his dabbling with serious drugs had become significant as he was stealing from her and her husband. She felt lost and was struggling to concentrate at work. Her new boss, Sarah, was a complex soul, awkward, abrupt and lacking empathy. Naomi had told her that she was struggling with her son and received the response, ‘Yeah, kids can be tough.’”

Oh my gosh! “Sarah regularly made unhelpful comments to Naomi and others about their work. It was small point-scoring, micromanaging type of stuff, but Naomi’s resilience was wearing thin. She was a strong woman and kept turning up. Her work remained of a high standard, but the rest of her life was collapsing around her. Her sleep was shot. She found herself sobbing in the bathroom at work and had become very isolated. Others noticed and told Sarah. Sarah would respond with comments, like ‘She needs to get herself together,’ and ‘Needs to leave her problems at home.’ Naomi heard what had been said and was deeply hurt.

Sarah approached her for an update on a project. Jokingly, she said later, she asked Naomi, ‘You are looking pretty knocked around, miss your hairdresser appointment?’” Wow! There’s no emotional intelligence with this one. “Naomi looked at her, broke into tears and ran out. She went to a nearby cafe, called her husband in tears and asked him to collect her. She sculled two bourbon and cokes. Sarah walked past, saw that she was drinking and said, ‘What do you think you’re doing? This is work time and drinking is prohibited! Go home and let’s talk about it in the morning.’ Naomi, now freed up by little alcohol, gave it to her with both barrels in public in front of many people. She received a show cause letter by email and a direction to attend a 10:00 AM meeting, failing which a decision would be made. Naomi didn’t attend and was summarily dismissed.”

Andrew Douglas: So, the question, does Naomi have a strong unfair dismissal claim?

Nina Hoang: Yeah.

Andrew Douglas: Yeah, lay down was there.

Nina Hoang: Yeah. Like definitely.

Andrew Douglas: Can I just say one of the reasons I don’t like-

Nina Hoang: It’s going to come down to harshness. Although, there would be valid reason with like the abuse and the drinking and stuff, it’s going to go overridden with the fairness and harshness.

Andrew Douglas: Yeah, yeah. Can I just say, the reason I wrote this story, is I like writing stories. But one of the things that people miss, is that when you return up in front of a tribunal or court, what you did as an employer is never lost. So, the tribunal member, or judge will be sitting there listing and going, “You did what?”

Nina Hoang: Yeah.

Andrew Douglas: “You said what?” And it poisons, it pollutes the case.

Nina Hoang: Yeah.

Andrew Douglas: And you can never get away from it.

Nina Hoang: Yeah.

Andrew Douglas: Once it’s heard, it’s there. And the moment the judge or the tribunal member heard what Sarah said, it was all over anyway. Would she have a strong workers’ comp claim? Totally, yeah, that’s a winner too.

Nina Hoang: Was Sarah a bully? And what action could have Naomi taken to stop it?

Andrew Douglas: What do you reckon?

Nina Hoang: Yeah, she was a bully.

Andrew Douglas: Yeah, yeah, I’m just-

Nina Hoang: You don’t, remember? It’s not like it’s an objective test-

Andrew Douglas: I’ve not disagreeing, I wrote it, yeah.

Nina Hoang: So, I think sometimes people think about, “Oh, you have to have an intention to hurt someone.”

Andrew Douglas: Yeah.

Nina Hoang: And that’s not a factor in it. It’s an objective test. So, it’s whether a reasonable person in that situation would think that it was unreasonable, repetitive behaviour. And I think by our reactions of us scoffing throughout reading it-

Andrew Douglas: Yeah, hurt, humiliated or intimidated.

Nina Hoang: It was clear-

Andrew Douglas: Quite clearly she’s being humiliated and hurt.

Nina Hoang: Yeah.

Andrew Douglas: And did it affect her safety at work?

Nina Hoang: Yes.

Andrew Douglas: Yes, it did.

Nina Hoang: It harmed her.

Andrew Douglas: Yeah, yeah, so, there you go. What action could she, she could have brought a stop bullying order.

Nina Hoang: Yeah or what, yes. I think she also could have reported it and it could have been investigated and dealt with.

Andrew Douglas: And she could have brought a general protections claim, even though she was employed.

Nina Hoang: Yeah, I mean they’re not as effective though.

Andrew Douglas: Not as effective, but they scare people.

Nina Hoang: Yeah.

Andrew Douglas: Just saying, “When we get them through when someone’s employed, you and I both go.” “Uh-oh, what are we going to do to get out of this?” Was there a breach of safety law?

Nina Hoang: Yeah, undoubtedly.

Andrew Douglas: Absolutely, yeah. So, from Victoria Section 21, 22, everyone else was, did they do everything reasonably practical to provide a safe place where, so, was there hazard? Yes, Sarah.

Nina Hoang: Yeah, was aware of it and she ignored it and she like exacerbated it.

Andrew Douglas: So, definitely breach of reasoning, but definite breach of safety at work, definite failure to monitor health.

Nina Hoang: Yeah.

Andrew Douglas: So, you got-

Nina Hoang: I think she was reckless as well.

Andrew Douglas: Yeah, yeah, yeah, she was close to reckless, yeah.

Nina Hoang: Yeah.

Andrew Douglas: You think she’d be charged?

Nina Hoang: On reckless?

Andrew Douglas: Yeah.

Nina Hoang: Oh, it depends on how long it would be going on.

Andrew Douglas: Can I say the organisation? Because this-

Nina Hoang: Yes.

Andrew Douglas: This is far away from the VBA and Army cases, because of what occurred as the ultimate result of it. But if in this case, if the person, who is being subjected to it died, I think that we’d see reckless and danger.

Nina Hoang: You reckon? I don’t know if WorkSafe would take that step yet at the current thing. Because a lot of it was tied to what is happening in her own personal life. And yes, Naomi, was it Naomi? No, Sarah, Sarah was exacerbating. But I think they’d want to see a bit more to meet the recklessness.

Andrew Douglas: No, I think it’s close though. ‘Cause what they’d see is, I understand it shows a lack of empathy, but it was a bit more than that, it was carelessness.

Nina Hoang: Yeah, but what I’m saying, is I think the current regulator, just with the cases and the charges they’re putting up, they’re not yet taking that step for charging those people.

Andrew Douglas: But I reckon it’s up there. Okay, was there discrimination or general protections? Yes, there is.

Nina Hoang: Yeah.

Andrew Douglas: Yes, there’s an identification of I’m struggling I think to a stage where her own behaviour and Sarah’s knowledge of a behaviour that was a mental health issue-

Nina Hoang: Yeah.

Andrew Douglas: Not a defined one or not one that’s diagnosed, but doesn’t need to be.

Nina Hoang: But also, a right to safe workplace as well.

Andrew Douglas: Yeah and that’s Birkin-Suncorp. So, there you go, guys. That was fun, good to be here.

Nina Hoang: Yeah.

Andrew Douglas: I’m a bit tired, Nina. God, I tell you what?

Nina Hoang: Thought you say this every week.

Andrew Douglas: Not as tired as Troy who’s sitting down there, staring at the camera, trying to stay awake but-

Nina Hoang: Thanks for joining us though.

Andrew Douglas: Yeah, thank you-

Nina Hoang: And give a thumbs up.

Andrew Douglas: Yeah, could you do that? That’d be good, cheers, bye-bye.