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Friday Workplace Briefing

FCW’s Major Trend Predictions for 2023 and How You Can Prepare

In our last Friday Workplace Briefing for 2022, Andrew Douglas and Mathew Reiman will discuss FCW Lawyers’ predictions for the four major trends in employment and workplace health and safety for 2023; and give you practical tips about how to prepare your business for these trends and challenges.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: Good day, Mat, how are you?

Mathew Reiman: Hello, Andrew. I’m doing very well, it’s Christmastime.

Andrew Douglas: You like the gangster gab, straight off the plane?

Mathew Reiman: Ah, it’s fantastic, yeah. I didn’t notice the pants until right now. I was too distracted by what’s going on up top.

Andrew Douglas: What can I say? And, look, Mat’s here for one very good reason, because he’s about to be a dad, and we’re not going to see him for a few months.

Mathew Reiman: That’s right, yes, I’ll be on parental leave for a couple of months, so it’ll be Andrew and Nina flying the flag with Kim.

Andrew Douglas: With Kim.

Mathew Reiman: On the briefing.

Andrew Douglas: So, that’s really exciting.

Mathew Reiman: Thanks, Andrew, yeah.

Andrew Douglas: I think from all of our family who are watching there, best wishes, mate.

Mathew Reiman: Thanks, Andrew, it’s a very exciting time. I’m very nervous and anxious, but excited at the same time.

Andrew Douglas: Yeah, getting used to not sleeping, okay?

Mathew Reiman: Yeah.

Andrew Douglas: Let’s just jump onto something that has come out in the last day or so, which is the Star City prosecution by ASIC around directors’ duties. We’re not going to spend a lot of time on it today, but this is a case about money laundering in casinos.

Mathew Reiman: Yep.

Andrew Douglas: And about directors’ liabilities, and the importance of this decision is very substantial, isn’t it, Mat, because it looks at how officers within organisations behave, whether it’s around proper wages, whether it’s the safety jurisdiction.

Mathew Reiman: That’s right.

Andrew Douglas: It’s wherever directors make decisions with the knowledge that they shouldn’t be doing the decisions they’re doing, and what this case found is the three steps. One is, is it a risk you were aware of? So, money laundering in a casino is that you’re aware at that stage and obligation arises to identify the nature of the hazard and to determine what is the method of controlling it in the reporting system that establishes and monitors what’s happening. Didn’t happen in Star City Casino.

Mathew Reiman: No, it did not.

Andrew Douglas: Okay. Worse still there, there were two notifications, one by the bank about concerning transactions, which is the National Bank, the second one by KPMG, who did a report which identified it as a substantial risk. Once again, the board noted it, acknowledged the level of risk, actually communicated that it was a risk, but did nothing about it. And now, ASIC, and I think all of us agree, would say that these officers are at enormous risk. Mat and I are only really chatting about it because people don’t understand the Corporations Act can apply to workplace matters as well.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: Things like wage, underpayment of wages, a clear breach of 181, 182, 183.

Mathew Reiman: Exactly.

Andrew Douglas: So, it’s not been done by regulators, but it doesn’t mean it won’t be done by regulators.

Mathew Reiman: No, and I think that’s the key point, Andrew, is, I think, a theme that we’ve had over the last year in particular is, look, there is an increasing level of attention around directors’ duties in respect of breaches of other obligations and other pieces of legislation. So, this is a really great example to say, look, it’s not just these things that just solely sit under the Corporations Act. Like, a lot of what we talk about, safety matters, underpayment matters, Fair Work Act matters, they’re matters that come back to the responsibilities of directors. So, increasing trend heading that way potentially.

Andrew Douglas: And we’re going to talk about that more. just briefly, by the way, we signed, this is our last show.

Mathew Reiman: Yes, oh, sorry, we did forget to mention it.

Andrew Douglas: We do come back on the 3rd of February.

Mathew Reiman: 3rd of February.

Andrew Douglas: And as lawyers, we’re on break from 23 December through to 9 January.

Mathew Reiman: That’s right, Andrew, yes. Let me check my dates-

Andrew Douglas: But people like me and Kim, we’re on call, so if you’re going to ring anyone, ring Kim. Kim’s not watching, so…

Mathew Reiman: Yeah, oh, she’s getting the phone ready-

Andrew Douglas: We’re getting texts coming through very, very quickly. Okay, so, let’s just jump into the introduction, Mat, because I reckon it’s a really important issue. We just talked about directors’ duties, and that was really to say, actually, this is what is happening, both legislatively and at the court level. What we are seeing is ratcheting up of expectations around the behaviours of leaders in organisations and the increasing liability levels that are attaching to that.

Mathew Reiman: Yes, that’s right, Andrew.

Andrew Douglas: And I think, while I was having my toasted egg and bacon sandwich-

Mathew Reiman: It looked good.

Andrew Douglas: And Mat was casually drinking, in a sophisticated way, his coffee, I think what we realised is you’ve been inundated with a range of information from lawyers and from consultants saying there’s these massive changes coming through.

Mathew Reiman: Yeah.

Andrew Douglas: Can I just say, they’re not, that there’s bits and pieces of them that are different.

Mathew Reiman: Yes.

Andrew Douglas: But what has changed is the ratcheting up in expectations and responsibilities of leaders within business and the increased likelihood of prosecution based on the way these changes lift that responsibility.

Mathew Reiman: That’s right, Andrew. I mean, look, exactly right. There’s a lot of places out there at the moment that are using some really fantastic adjectives to make things sound like there are seismic changes and the world is different from employment and safety, but once you actually look at it as we’ve done, sort of holistically, what we are actually seeing is what all of these changes go to is something that hadn’t been happening or is increasingly starting to happen, which we think will ratchet up into 2023, which is this greater attention on director and executive responsibility for all sorts of matters that relate to employment and safety.

Andrew Douglas: Yeah, so, you know, we started off with a dog, and now we’ve got an angry dog, but we don’t have an elephant.

Mathew Reiman: No, no, exactly, yeah.

Andrew Douglas: ‘Cause the law has changed in ways of increasing the opportunity to create liability.

Mathew Reiman: Yep.

Andrew Douglas: But, actually, the underlying tenets of what the law is trying to do hasn’t been changed.

Mathew Reiman: No, that’s right.

Andrew Douglas: So I think it’s probably worth us just really emphasising that. What we’re going to try and do today is say to you, well, look, if there is this elevation in responsibility, what is it for a start? What is that elevation in responsibility? Then, what are the actions you need to take?

Mathew Reiman: Yeah.

Andrew Douglas: Because everyone’s been confused by it, because they’ve been sidetracked by this crazy commentary of the real, you know, the “Chicken Little” stuff, the sky’s about to fall, the sky’s about to fall, and everyone goes, what does it mean?

Mathew Reiman: Yeah.

Andrew Douglas: And what we want you to keep coming back to is a risk lens, when we apply to it. So, why don’t we just kick off now to what I think I loosely called the gender revolution.

Mathew Reiman: The gender revolution. Yes, you did.

Andrew Douglas: Yeah, I was clearly on my second scotch when I wrote that. What we’re really talking about here is a political and community change about how women should be treated.

Mathew Reiman: Yeah, I mean, I think, 2022, the federal election, both the election of the Labour Government, of course, and the success of the, you know, so-called teal independents, they represent a largely, you know, female ownership of roles now within Parliament, which is a fantastic change, but what it signifies, I think, more, Andrew, that we’ve discussed a couple of times over the last year, is this shift in the attitude of the electorate regarding issues that affect women and the importance of having women in positions to be able to have a voice on those matters, and then influence those decisions. And that context that that creates is something that applies now across all levels of our society.

Andrew Douglas: And so, when Mat says that, that’s not just a statement of fact, but it is a statement of fact, or, in fact, yeah, no, it’s a problem. In fact, the data, when you dig into it, shows that people between the ages of 23 and 40, 70% of those people wanted integrity, climate change, and the protection and elevation of women. So, they were the three issues that absolutely dominated, and they are now one half of the total voting public, so they are a very substantial part. So, when you look at this legislation, the second part of that is it actually affects the intention of this. So, what has happened with all this legislation that has come through is the crafting of the intent into the objectives to the legislation to protect women and to ensure gender equality. That means, when you look at a piece of law, you look at it through that lens, very important part in construing a piece of legislation.

Mathew Reiman: Yeah, I think it’s easy to forget, isn’t it, Andrew? You can see courts and tribunals as being something that sometimes is a bit devoid of context of society, but they are buffeted and impacted by those pressures in the same way. So, a shift in societal attitude reflected so seismically, to use an adjective, as we’ve seen this year, it does filter through the way that legislation and laws apply.

Andrew Douglas: So, let’s talk briefly about what that change is, Mat, and I think the most obvious one, well, there’s two really obvious ones, isn’t it? There is the prohibition that sits in secure jobs, which you must not sexually discriminate or harass.

Mathew Reiman: Yes, that’s right-

Andrew Douglas: And then there is the positive duty that’s been cast, and the positive duty is the really big one.

Mathew Reiman: Yeah, absolutely true.

Andrew Douglas: That sits in the Respect at Work. Now, let’s talk about the Respect at Work. I know I haven’t been the kindest person about this piece of legislation, but this legislation was designed to deliver, to a liberal male group, a panacea for a nightmare that was happening in front of them.

Mathew Reiman: That’s right.

Andrew Douglas: And it is written for that lens, and why do I say that? Because if anyone was serious about sexual harassment, they would utilise the provisions of the safety legislations.

Mathew Reiman: Yes.

Andrew Douglas: And they’d empower the Human Rights Commission with the same regulatory powers to prevent it, because what all the evidence shows is there has been no change in sexual harassment, discrimination, and gender equality over a five-year period.

Mathew Reiman: That’s right.

Andrew Douglas: So, if you want to do something about it, and you’re going to be serious, that’s what you do. So, understand, these are tepid changes, and they are much more focused in dealing with an individual’s right to seek justice.

Mathew Reiman: Yes.

Andrew Douglas: Which is the very thing around sexual harassment, which we know is flawed and that very few people step forward, and there’s, we’ve seen on television, many reasons why you wouldn’t step forward and make a sexual harassment claim.

Mathew Reiman: Absolutely.

Andrew Douglas: So, it doesn’t cure the vice that sits here, I just want to be clear about that.

Mathew Reiman: Well, I think that’s the key point, Andrew, and I think that’s what’s missing from a lot of the commentary we’re seeing about, well, how does these changes under Secure Jobs in Respect at Work impact your business? What we’re missing is no one’s actually sitting back and thinking, like, yes, okay, you hear, oh, this new claim, hostile work environment, you’ve got sexual harassment in connection with work. The truth of it is, yes, of course, these are new plaintiff-friendly jurisdictions, which will see an increase in plaintiff law firms in particular, particularly given the retention of the cost jurisdiction.

Andrew Douglas: Totally.

Mathew Reiman: See an increase in these, but when you come fundamentally back to the illness that it’s trying to cure in the law, it sort of fundamentally fails, I think, in two key respects.

Andrew Douglas: Yeah, it’s a Panadol, not surgery.

Mathew Reiman: That’s right. That’s right, because it does, exactly. It’s treating a symptom, it’s not treating the actual cause, and what these changes really failed to do was two things. One is it still leaves it on the individuals, as you’ve identified, Andrew, to drive the prosecution of these claims, and we know that people who experience sexual harassment are unlikely to report it to begin with, let alone bring claims, but there’s no real empowerment, both in funding and actual enforcement powers, to any of the regulators in this space. The AHRC has been given some out of Respect at Work.

Andrew Douglas: In 12 months’ time.

Mathew Reiman: That’s right.

Andrew Douglas: But have no extra funding.

Mathew Reiman: No, exactly.

Andrew Douglas: So, let’s cut to the chase. That’s our criticism, right, and I think it needs to be heard, but what a positive duty does is introduces safety concepts into the management.

Mathew Reiman: Yes.

Andrew Douglas: And it goes back to our discussion around ASIC earlier on. When I have a positive duty, I need to understand and be aware of the nature of the risk.

Mathew Reiman: Yep.

Andrew Douglas: And hazards that exist. That’s a requirement to obtain evidence. I then, and only then, can determine what is the nature of control, and remember, sexual harassment lives in different corridors.

Mathew Reiman: It does.

Andrew Douglas: So, some things, like Christmas parties, it’s really easy.

Mathew Reiman: Yep.

Andrew Douglas: But on a day-to-day basis, the way a woman is treated at work is very individual in nature. So, how do I get that evidence? And the answer is, which we won’t talk about for too long, but is, clearly, I must set a baseline evidence as to what the risk is, and that comes through focus groups, it comes through doing research by sending out surveys, it comes through doing the proper risk assessment process. You can’t execute a positive duty if you don’t know where the hazards are, you don’t know what the risk of those hazards are, and then you don’t determine at that stage what are the resources and control you put in place. So, what the positive duty says is, in documentary form, you must have it.

Mathew Reiman: Yes.

Andrew Douglas: And that’s one of the key changes, is you’ve got to lift this process up into a documented system because the executive group have to be satisfied that their hazards have been identified, the risk is determined, and the controls are in place, or they will have, like, a reverse onus, where they will not be able to demonstrate that they’ve executed their positive duty.

Mathew Reiman: Yeah, exactly.

Andrew Douglas: And it gets slightly worse because the changes increase things like hostile workplaces, which means behaviour which is not directed at a person is still a breach.

Mathew Reiman: Yes, exactly right, Andrew.

Andrew Douglas: And it’s the aggregation of that sort of behaviour, which is what you’ll build a claim on.

Mathew Reiman: Yes.

Andrew Douglas: And that’s pretty troubling, isn’t it, ’cause three years later, they’ll be answering episodes that occurred at different functions and different places, none of which you knew of because you didn’t have an appropriate reporting-

Mathew Reiman: No, no system, no procedure.

Andrew Douglas: Suddenly, there is this wave of evidence that shows your culture is broken, and the only intervention is an injunctive-style intervention, which is now available.

Mathew Reiman: That’s right, Andrew. Yeah, I think that’s the key thing. I think what we’re really saying here is a lot of commentary, again, out there is going to say a pretty lazy, if I may say that, response, which is, oh, get your policy, update your policy, put the new bits and pieces into it, hostile work environment-

Andrew Douglas: I know, but policy never stops sexual harassment.

Mathew Reiman: Well, that’s it. Well, that’s exactly right.

Andrew Douglas: You can hit someone with it, but that’s about all it is.

Mathew Reiman: Exactly right, Andrew. What we’re saying now is positive duty, hostile work environment, sexual harassment in connection with work, elevate this to the safety level concern it actually is, undertake your risk assessment. That’s got to be your 2023 priority around sexual harassment. What is the risk of sexual harassment in your business? And then consider what other reasonably practical controls you can implement to mitigate that risk and protect your people.

Andrew Douglas: And that’s where you’ve got to build a system.

Mathew Reiman: Absolutely.

Andrew Douglas: So, this isn’t about a policy, which is one-sixth of the system, this is about, what is your plan, what are the policies and processes, what is your training and competency base, what is the supervisor capability, what is the monitoring system you have, and how do you report against it, so that each officer within an organisation can say, yeah, look, we do have a problem here, and we’re dealing with it?

Mathew Reiman: Yeah.

Andrew Douglas: Because you do have a problem, so you must deal with it. I want that to be really clear.

Mathew Reiman: That’s right, Andrew, that’s right.

Andrew Douglas: Why don’t we go onto the next one, Mat?

Mathew Reiman: I think that’s good.

Andrew Douglas: Okay, so, we’re going to go onto, what topic did, I actually chose one, which was a bit more benign and with psychological hazards this time, didn’t I?

Mathew Reiman: That’s right, yeah.

Andrew Douglas: I don’t even know what time we’re running today ’cause my idea of using the clock didn’t work at all.

Mathew Reiman: I think we’re okay.

Andrew Douglas: I reckon.

Mathew Reiman: I think we need to move quickly through this part, Andrew.

Andrew Douglas: Move, move quickly.

Mathew Reiman: But that’s okay.

Andrew Douglas: So, psychological hazards, we know, is now in a number of jurisdictions, or will be in a number of jurisdictions coming to you. So, Victoria’s one that’s coming to you. We know that in South Australia, it’s probably coming to you. It’s definitely in New South Wales, definitely in Queensland, the ACT is just running with it. It’s in the north. So, it’s out there.

Mathew Reiman: Yeah, yeah, and we’ve been talking about it all year.

Andrew Douglas: Yes, and again, there’s a lot of huff and puff about this, but this was something that was always there just through what is reasonably practical. But what has changed is an understanding through these codes and regulations about, that the hazards are not the old ones. They’re terrible, the violence that exists in the workplace, sexual harassment, bullying, those extreme forms are there, and in some states will be reportable and notifiable. Another trend which is taking off in the ACT is in part of the regs here as to the notifiable, but not immediately notifiable, and without a doubt, in the next 12 to 18 months, sexual harassment, at least, will be a notifiable. That’s what I expect.

Mathew Reiman: It’s a great point, Andrew.

Andrew Douglas: And safety law will start to own that.

Mathew Reiman: Yes.

Andrew Douglas: But psychological hazards are about leadership, they’re about creating certainty in the work that’s being done, ensuring people are utilising their skills properly, the volume of work is right, and there’s a reward and recognition system that does it. They’re the things that are damaging people, okay? So, again, the lazy response is to say you need a policy.

Mathew Reiman: Yeah, get a policy. That’s all you need.

Andrew Douglas: But what is the policy referring to, where is the evidence?

Mathew Reiman: Yeah.

Andrew Douglas: So, once again, you need this system that sits around psychological safety, and we’re starting to see other governments clipping away at it in another way.

Mathew Reiman: Yeah.

Andrew Douglas: And you’ve got an industrial manslaughter system, which is being built around managing serious psychological hazards, because it’s a place where a death can occur outside of work.

Mathew Reiman: Outside of work, yeah, but linked to work, yeah.

Andrew Douglas: Yeah, and we’re seeing a federal government who’s interested in-

Mathew Reiman: Oh, yeah, bringing the reverse onus into their whole work health and safety system, yeah.

Andrew Douglas: And having industrial manslaughter is something that is mandated, and we’ve seen that reflected around Australia, but my point about this is this is something which is fundamental to providing a good workplace.

Mathew Reiman: Absolutely, yeah, you know, very akin to the sexual harassment point.

Andrew Douglas: It needs a system, so it needs a plan about how you’re going to manage which comes from evidence. So, it needs a risk assessment that’s sitting in there. Then you can look at policy.

Mathew Reiman: Yep.

Andrew Douglas: Then you can say, okay, what do we actually need? Then I can look at my training needs, but where’s the training got to be first? It’s got to be the leadership group.

Mathew Reiman: It does, it does.

Andrew Douglas: ‘Cause they’ve got to be aware of what it is they need to build as a plan to have a report against so that you can actually manage this.

Mathew Reiman: Yes, exactly right, Andrew.

Andrew Douglas: And we’ve already got two Victorian cases that have started to prosecute the leadership issues.

Mathew Reiman: Yes.

Andrew Douglas: Not the big issues, and we’re going to see regulators stepping now, because of the failure in Respect at Work, stepping into the sexual harassment arena.

Mathew Reiman: That’s right, that’s right.

Andrew Douglas: And the ACT is a classic example, which took that idea, and actually has put in safety legislation that a sexual assault is a notifiable incident.

Mathew Reiman: Yep.

Andrew Douglas: So, safety is being bled back into other areas because of the failure in legislation.

Mathew Reiman: Yeah, and that’s one of your key points, Andrew, and I think a real key trend for 2023 in particular, too, increasing bleeding in of safety into these other matters that you might have once just thought were simply workplace-related matters.

Andrew Douglas: Now, the other part to look at is, and we’ll talk more about capability in the next part of it, but one of the structural things you must do is look at job design.

Mathew Reiman: Absolutely.

Andrew Douglas: So, when we talk about, what is the plan, the first thing is to understand about how work is designed and working so that you have that factual basis. Are people doing the work they should be doing? Is the volume of work improperly spread? Now, you’ll see all of these form, what we’re talking about today, into one process. So, they collapse into the one process of analysis. This isn’t five jobs you’ve got to go out and do. This is one job, okay?

Mathew Reiman: One big, overarching job. That’s right, Andrew.

Andrew Douglas: And that’s why this has bugger all to do with creating a nice policy and stamping it.

Mathew Reiman: That’s so right, Andrew, yeah, but don’t sit and forget your troubles-

Andrew Douglas: Oh, man! Oh, man!

Mathew Reiman: You need it once more time before the end of the year. It’s a fantastic point, Andrew, it’s right. Everything that we’re talking about today, what we’re saying is our major sort of takeaway for 2023 is it’s time to step back actually and reassess, at a holistic level, from your leadership level all the way down, what is the systems, or what are the systems, excuse me, that you have in place to address these-

Andrew Douglas: Based on evidence.

Mathew Reiman: Based on evidence.

Andrew Douglas: So, it’s only after you’ve got the evidence, you can create the plan.

Mathew Reiman: Yep, that’s right.

Andrew Douglas: And once you’ve got the plan, you can then descend down into policy training, competency-based development, monitoring systems and reporting systems that allow officers to actually manage the process correctly.

Mathew Reiman: Yes, exactly, Andrew.

Andrew Douglas: Alright. Now, I just do want to say that the reverse safety, this issue, the reverse onus.

Mathew Reiman: Yes.

Andrew Douglas: In 2011 or ’12, I think it was, 2011, New South Wales backed away from their reverse onus, but at that stage, it was the only jurisdiction in the history of Australia that ever made money from prosecutions.

Mathew Reiman: A fascinating statistic when you told me-

Andrew Douglas: It was actually in surplus, and part of the reason it was revoked is it made it impossible for business to actually respond properly. I ran three or four trials during this time. It was incredibly difficult to get over the bar because most organisations don’t have the documentary structure to be able to respond to reverse onus tests, which we’ve seen throughout adverse action claims just the same. So, this is pretty frightening. This is part of the labour platform, okay? It’s a labour platform for all offences under the Act, so some of these offences are go to jail offences, and if they had reverse onus, what we’re doing is reversing the standard, the standard of care, which is, you’re not guilty.

Mathew Reiman: Innocent. Innocent till proven guilty.

Andrew Douglas: Innocent till proven guilty.

Mathew Reiman: Yeah.

Andrew Douglas: So, it is scary, and it comes back to this part that Mat and I are talking about, it’s unfortunate, but particularly the Queensland version of what’s happening in this space, is when you look at their codes, they’re document-rich. They require incredible detail around their documents. Now, that’s Queensland.

Mathew Reiman: Yep, okay.

Andrew Douglas: But it’s a bit of a lesson to us all. If I want to be able to defend a claim, where I must prove it myself that I did nothing wrong, what must you do? You must have a good documented plan, processes, training that proves competency. I must have proper contemporaneous notes of issues. I must deal with all issues that are reported as a potential breach of safety legislation, psychological hazards, misconduct, sexual harassment.

Mathew Reiman: Sexual harassment, yeah.

Andrew Douglas: I must treat those as a safety issue, make an incident report into them and investigate them.

Mathew Reiman: Yep, yep.

Andrew Douglas: So, do you see how this coalesces into one whole?

Mathew Reiman: It does.

Andrew Douglas: But what it requires is evidence.

Mathew Reiman: Yes.

Andrew Douglas: Policies don’t create evidence, they create a pathway.

Mathew Reiman: No, that’s right. That’s right, Andrew.

Andrew Douglas: Alright. So, we’re now onto the next one, which is flexible working.

Mathew Reiman: Flexible working. I think the buzzwords, I think, if you’ve heard anyone on any sort of employment law platform speak over the last few years, but we’re thinking about it a little bit differently today.

Andrew Douglas: I think what we’re trying to say is, look, flexible working has been beefed up so that, as a business, you must be able to demonstrate your business case, and it’s more intrusive tests against you about someone requesting a carer’s responsibilities, all that stuff.

Mathew Reiman: Yep, yep.

Andrew Douglas: That’s all good, and we’re also hearing about, well, you know, COVID meant that we can work at home, not work from home. The only problem that’s really arisen out of that is people’s failure to create certainty around it.

Mathew Reiman: Yes, yes, a good point.

Andrew Douglas: It is now a reality, and you should sort of own it, and you should do that based on a business and risk-based assessment. That’s how you manage it, but most people have started to establish that in a workable way. But what we’re really blessed with at the moment is a High Court that says, if I say, “Mat, you’re a casual,” and you say, “I’m a casual,” and I document that, you’re a casual.

Mathew Reiman: That’s our agreement.

Andrew Douglas: Yeah.

Mathew Reiman: That’s what’s in the right.

Andrew Douglas: So, we’re in a place now of flexibility, which we should be starting to enjoy, which is we should go back to our capability structure, we should analyse it and say, look, what is our core talents we must keep? That’s definitely employees, okay?

Mathew Reiman: Yep.

Andrew Douglas: It’s an incentivized process around key employees.

Mathew Reiman: Yep.

Andrew Douglas: For the ebb and flow of business through a disruptive environment, where do we need to flex, and what would be the ideal mechanism? Would it be a contractor, would it be a casual? Look at my awards, okay. I can even build into my business case that after 12 months, I’ve got a good business case for saying, no, you stay casual.

Mathew Reiman: Yep.

Andrew Douglas: If you’ve got a good business case. So, coming back to this capability analysis of building a business case, it deals with the spokes on the wheel. It deals with when people seek flexible work, I know that job can’t for this reason, okay, ’cause it fits the business reason, or I know it can for this reason, but why do we always wait for the question to come before we create the business codes?

Mathew Reiman: That’s the key point.

Andrew Douglas: Whereas what we’ve got now with this High Court around what is a contract and what is a casual, and the sort of slightly flawed provisions around fixed terms that are coming under-

Mathew Reiman: Yeah, under Secure Jobs, yeah.

Andrew Douglas: Which means you can easily work around those forever because they are so flawed. Is it you have this unique circumstance, where you can create an entirely flexible workplace as long as you design the business capability carefully and plot who does what?

Mathew Reiman: That’s right, Andrew, and I think what we’re talking about here, too, is it’s not flexible working purely from the perspective of the employee, which is how it’s most commonly sort of discussed and referred to. We’re talking about here, as Andrew, you’ve identified, it’s the flexibility in the way you arrange your work. You know, this is really an interesting period of time that we’re living in in this space, where the court, the High Court in particular, have given us a reasonable amount of certainty for the first time around who’s an employee, who’s a contractor, who’s casual, who’s permanent that really comes back to, what have you agreed in writing at the commencement of that engagement?

Andrew Douglas: Can I just say, this is a chance to grab it?

Mathew Reiman: That’s right.

Andrew Douglas: We probably won’t get this chance again to create genuinely flexible workplaces, and I won’t go on about the gig economy ’cause we’re 24 minutes in.

Mathew Reiman: Yes, that’s fair.

Andrew Douglas: So, what we will do now is jump to the problem.

Mathew Reiman: Let’s do it, Andrew.

Andrew Douglas: Yep.

Mathew Reiman: All right. I wonder how big the wall of text will be today, Andrew. So, here we go, it’s not too bad.

Andrew Douglas: Okay, here we go, after you.

Mathew Reiman: Here we go. “Rachel was a senior manager at Terry, Tammy and Terrier Partners Pty Ltd,” I almost got there, “a large accounting firm. Her boss, a principal named Roy, was a hard-working direct man of 45. He was a member of the Executive. The hours of work were long. Rachel worked in the Audit team. They often attended site to undertake parts of the audits. Roy’s client base was family-owned manufacturing, often suburban plants run by fathers and sons. They were confronting for women. Rachel had learned to dress down when she attended sites. Rachel had raised with Roy the nature of the-,” yeah, would you, yeah.

Andrew Douglas: Sorry.

Mathew Reiman: Sorry, last one, last one for the year, Andrew. “Rachel had raised with Roy the nature of the clients, the manner in which she was treated, which ranged from being treated as a second-class person, the owners would check in with Roy that what she was asking for was really necessary, to comments that were reducing her importance by her gender and outright harassment through the making of sexualised comments.

Rachel had specifically raised two issues. First, that much of her remote work could be done from home, she lived an hour and a half from the city centre in Cranborne. It didn’t require her to come into the city offices or travel even further across town to clients.

Second, she did not want to do Hutch and Haven, a construction company in Hampton, as her treatment there had been terrible. They were rude, joked about her sexually, and the younger son repeatedly would drop by and touch her on the shoulder suggestively, making it look like an accident.

Roy spoke to the father at Hutch and Haven. He laughed, but said not to worry. Roy told Rachel, but she repeated that she didn’t want to go. Roy told her to grow up. He also said no to any flexibility, even though he knew Rachel’s husband was a FIFO worker and she had a young family.

Rachel went to Hutch and Haven the following day and was abused by the son. She left their offices distressed, and was later found by her husband unconscious after taking too many of her prescribed antidepressant medication. She had shown no signs of her distress before.”

Andrew Douglas: Okay, now it’s pretty easy, this.

Mathew Reiman: Yeah.

Andrew Douglas: Everyone’s liable on the safety.

Mathew Reiman: Everyone is liable on the safety, my goodness.

Andrew Douglas: Hutch and Haven is liable.

Mathew Reiman: Yep, that’s right.

Andrew Douglas: The son’s liable.

Mathew Reiman: That’s right.

Andrew Douglas: Roy is definitely liable.

Mathew Reiman: Yes.

Andrew Douglas: Terry, Tan.

Mathew Reiman: Terry-

Mathew Reiman: Terrier, Tallie and McCallie.

Andrew Douglas: The dog accounting firm, they are liable, and for two of them, Roy and the son, it’s probably reckless endangerment, and the reason is what Roy knew was happening in a high-risk environment was that she was being subjected to something which was unlawful, wrong, and hurtful.

Mathew Reiman: Yep.

Andrew Douglas: And he did nothing about it,

Mathew Reiman: Yeah, it makes it-

Andrew Douglas: So, he’s indifferent, so he was reckless with her.

Mathew Reiman: That’s right.

Andrew Douglas: That’s sort of close to off to jail. The son is much closer to going off to jail.

Mathew Reiman: Absolutely.

Andrew Douglas: But with what would, without a doubt, be a very, very substantial fine, and remember, the definition of a person under reckless endangerment means it doesn’t have to be a worker. So, they have very, very significant liability, and they have third-party liability, and what’s called the primary duties, if they affect a third party who’s not theirs.

Mathew Reiman: Yes, Andrew, absolutely.

Andrew Douglas: So, there you go.

Mathew Reiman: Lots of people on the hook for that one.

Andrew Douglas: If Rachel died, could Roy or other officers and the firm be prosecuted under industrial manslaughter? The answer is Roy definitely could be.

Mathew Reiman: Yes, Roy, absolutely, yeah.

Andrew Douglas: Unlikely to occur, but let’s talk about it, is there a breach of duty? There is a breach of duty. Is it even criminal liability? This is where Roy may get off. To have criminal liability, it is the most serious breach of duty you can consider. With the information he had, it’s close.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: But I don’t think that WorkSafe would prosecute, and I don’t think-

Mathew Reiman: No, maybe in the context of the things we’ve been talking about and how that shifts the overall view-

Andrew Douglas: But a little bit more, a little bit more information.

Mathew Reiman: Yeah, I agree. I agree.

Andrew Douglas: So, if she started crying, if she described the inability to sleep, if she threw, then I’m afraid he would be off to jail for a long period period of time. Let’s go to the next questions. Okay, “If Rachel survived, would she have a successful common law claim for damage?” This takes the High Court case-

Mathew Reiman: Yeah, Kozarov case, yeah.

Andrew Douglas: Kozarov case we’ve been talking about, which says, in a high risk environment, the absence of signs or symptoms are irrelevant. There is a positive duty to intervene to ensure people are safe.

Mathew Reiman: Yeah, it’s assumed awareness of the high-risk environment.

Andrew Douglas: Okay, okay. So, a pretty easy one, that. “If Rachel survived, would she have a successful discrimination harassment claim?” By G, she would.

Mathew Reiman: Oh, my goodness.

Andrew Douglas: And because she’s been touched during this process, because it’s been a protracted period, and because she’s complained, and yet it continues, her general damages are above the sort of minimum threshold for that sort of work of 150.

Mathew Reiman: Absolutely.

Andrew Douglas: So, somewhere between 150 to $300,000, and that’s before you get economic loss.

Mathew Reiman: Yeah, of course.

Andrew Douglas: And medical losses. You know, so if she was unable to come back to work for three or four years, you’re there at a million dollars, the claim.

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: “Does Rachel have a successful general protections claim?” On two bases, doesn’t she?

Mathew Reiman: Yeah, exactly, yeah. So, she’s got the discrimination complaint issue, which is the breach of the general protections in that respect, and she’s also directly made a complaint about the terms and conditions of her employment and the way that she’s being treated by the people. Oh, yeah, sorry, and it affects her work. That is good one.

Andrew Douglas: Yeah, so it’s a good one.

Mathew Reiman: So, yeah, she’s got a good running case. “Does Rachel have a successful workers’ compensation claim?” And absolutely, and there is absolutely no defence, and even if she didn’t bring a claim, this is a substantial business. Say they have a remuneration of $4 million a year. Even in accounting, which is a low category risk insurance throughout Australia, they’d be paying a premium of around about 250, 300,000. So, the premium hit in Victoria could be about half a million dollars. In New South Wales and Queensland, it could be much more. It’s a five-year period that we’ve been looking at. So, yes, a very successful claim. Mate, that is it.

Mathew Reiman: That is it.

Andrew Douglas: Best of luck.

Mathew Reiman: Ah, thanks very much, Andrew, I appreciate that.

Andrew Douglas: Have a lovely break, guys.

Mathew Reiman: Yeah, Merry Christmas, Happy New Year, and all those things.

Andrew Douglas: Okay.

Mathew Reiman: Thanks, everyone, bye.

Andrew Douglas: Bye-bye, and thumbs up. Yes, we want thumbs.

Mathew Reiman: Do we still do thumbs?

Andrew Douglas: We do, I want thumbs.

Mathew Reiman: Oh, well, yeah, I suppose we get to put it on LinkedIn. Thumbs are on, thumbs.

Andrew Douglas: Okay, see you later. Bye-bye.

Mathew Reiman: Bye, everyone.

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Curious about the new frontier of safety prosecutions? For this week’s Friday Workplace Briefing, Andrew and Nina will be taking us through the why behind regulators focusing on failures of supervision in new large-scale prosecutions.  To view the full episode and catch up with the week’s latest news and developments please visit this link.