Andrew Douglas: But I think we we’re onto our main topic. And our main topic is really dealing with racism and migration. I just want to run a couple of facts past you. I should have done this before we talked. Our replacement rate that is our fertility rate in Australia is around about 1.44, which means we generate generationally about 1.44 to replace two. So our actual underlying population growth is decreasing. We have the lowest unemployment rate. And there is a reason for that.

It’s not because of our brilliant governments, it’s ’cause we actually don’t have enough people. In every industry group that I act for, let’s just choose two, education, food, well three, food processing agriculture. In every one of those industries, they totally rely on immigration to fill both skilled and unskilled jobs. Australia is an immigration country. In fact, every person in our office has this generation or in the generations before, migrated to Australia. And it is what makes Australia a unique place. And we’ve got this horrible body politic at the moment, both on left and right, left because of unions saying, don’t take people’s jobs. Dumb is dumb because there’s no jobs there.

So they’re not taking anyone’s job. They’re actually making industry viable. And we’ve got the other side of politics who’s adopted some mad extremism about how bad people are from overseas. Australia desperately needs talent. We don’t have it. It leaves Australia’s shores and we have negative growth rate. So when we, talking about the case we’re talking about now, which is the career case, what I want you to remember is if I look at meat processing, major meat processes, that is people have more than 300 to 400 workers. At least 30% will come from the PALM Scheme, which is islander based, would include Timorese, Taiwanese and Chinese people and Indonesian people coming into Australia to fill that gap.

And there’s special conditions that sit around that. And we do that with our problem. But I just want to stop this whole argument about migration. It is a political issue. Business cannot survive without migration. The growth of our economy cannot grow without migration. The model we use to model wealth is wrong because in migrants families, wealth is spread sideways and consolidated. We’re going to a stage if we don’t increase our level of migration, that my generation will require only three of you to support me on a pension. Whereas 20 years ago, five of you would’ve supported me on a pension ’cause the demographic change that’s happening, we are going backwards financially at a huge rate because some mad politicians think we don’t like people from other countries. Besides it being obscene and offensive, it is actually damaging our economy and our future lives. So that’s my rant for today.

Tom Daly: Well said. I agree.

Andrew Douglas: I think it really needs to be said. And everywhere I’m presenting at the moment around Australia, the one thing everyone talks to me about is talent shortage and need for migration. And yet I don’t read it on the news. I never read it on the news. So, interesting. Tom, let’s go over to Karen, mate.

Tom Daly: Well, yeah, so in this case, a Samoan man was terminated for reasons which included an unexplained absence, which he didn’t notify them of. And also allegations of verbal abuse towards a foreman and other staff members. Now he was, they found that there was a valid reason in respect of the unexplained absence, but they decided to reinstate him because there were procedural deficiencies associated with his termination.

But this matter really was about whether the reinstatement was the appropriate remedy given the allegations of racist remarks that he had made towards other people. Now in this case, the foreman said that he had witnessed this person making, you know, racist remarks towards other staff members and behaving aggressively. And that, you know, some of the remarks were quite vulgar. You know, quite aggressive behavior and severe. Now is it the Fair Work Commission?

Andrew Douglas: Yeah The Fair Work Commission.

Tom Daly: The Fair Work Commission says, “Oh, we can’t accept that evidence because we don’t think he saw that.” It’s hearsay basically.

Andrew Douglas: Yeah so we can hear it, but the weight we have to give it is less because the foreman didn’t hear it. But in fact the evidence was the foreman did hear it.

Tom Daly: Yeah so they had a big discussion about that and they got to the point where they realized that maybe he did hear it or he did hear it.

Andrew Douglas: Yeah.

Tom Daly: And then they were left to say, “We’ll give it back to the Fair Work Commission to decide whether or not reinstatement was the appropriate remedy. Because if what he said was true, it’s such deplorable and vindictive behavior that there’s at least a chance that if that was true, there’s at least a chance that they wouldn’t order a reinstatement because you can’t have people like that.

Andrew Douglas: No and that’s it and the heart of this is if you’re going to say racist and horrible things, this Fair Work Commission, whoever the commissioner or deputy president’s going to say no.

Tom Daly: Yeah.

Andrew Douglas: And Tom’s right, probably not interesting to any of you, but quite interesting to Tom and I that if I hear something that someone says and I talk about, that’s hearsay okay? And hearsay, although there are no rules of evidence strictly within the Fair Work Commission, you are required to give it a different weight. So because what I, someone tells me they saw, heard or saw, is not hearing it or seeing it. And what was missed in this case by the commissioner in first instance was no, no, the foreman did see and hear it and therefore the weighting was wrong and reinstatement would be an inappropriate remedy if it’s true. So we need to hear that again. Because if it’s true, it breaches trust and confidence and you can’t reinstate.

Tom Daly: Yeah.

Andrew Douglas: All right mate, well why don’t we go on to the case study? Are you going to do the reading?

Tom Daly: Yeah, I’ll read, I’ll read. Endeavour Meats was a meat processing plan in Avoca. Avoca was a small town and Endeavour was the major employer. The town had full employment, yeah, the town had full employment and Endeavour had a workplace that was 30% Samoans under the PALM scheme, 10% Timorese and some technical staff from China. Without these workers, it could not function. Haku Koa was employed as a boner under the PALM scheme as a casual employee. He had worked for eight months and was used to be made permanent at his nine month anniversary as required by-

Andrew Douglas: DEWR.

Tom Daly: What is it?

Andrew Douglas: DEWR Department of Employment Workplace Relationship.

Tom Daly: DEWR, DEWR, okay. He was employed at Level 5 under the Meat Industry Award. This was a requirement under the contract between the Federal Government and Endeavour. In truth, he was expensive for Endeavour and his skill level was between two and three. But they had no choice. His fellow workers had accepted the unfairness of it all. It had been going on at their site for two years. And although they were Levels 3 and 4 and better than Haku, they understood. They also knew he worked hard and was learning. The operations manager, Dan Lately, struggled with the influx of overseas workers. It seemed wrong to him.

He was 42, a divorcee, and lonely. He had dated briefly a Samoan woman called Sina, but she did not warm to him and eventually called it off. Three months later she was dating Haku and Dan was angry. In the crib room, he made remarks about how relaxed and slow the PALM workforce was among his white colleagues. He also made suggestions about the loose morals of Samoan women. He directed Haku’s team leader to ensure Haku hit a tally of work commensurate with Level 5. The team leader knew it was unobtainable and unreasonable, but did not challenge Dan, as he was the brother-in-law of the owner. Haku complained to his team leader that it was unfair and unreasonable.

The team leader felt corralled and worried. He called Dan who attended a meeting and said to Haku, “In Australia, you don’t get paid for laziness and whoring around rather than working. Put away your grass skirt and ukulele and do some work.” Haku was stunned. He was a quiet religious man, but he summoned the strength to challenge Dan and said, “You know that its racist and bullying. I feel unsafe when you’re involved in my supervision.” Furious Dan shouted back, “Bad luck. You have a final warning and if you don’t hit the tally tomorrow you’re out.” Dan returned to his desk, sent Haku his final warning and then sent a text to Sina saying, “Think carefully about us because Haku won’t be here long and maybe you too.” He attached a love heart emoji.

Andrew Douglas: Alright, we’re onto questions. Alright, so the first question is, was there a breach of safety law and if so, what do you reckon it is Tom?

Tom Daly: I’d say there’s a clear breach of safety law in multiple aspects such as, well he’s being asked to do, he’s been asked to meet a work target that he is not capable of meeting, which is-

Andrew Douglas: It’s a workload stressor you see. Yeah. You know, it’s an incredible stressor to be required to do something that can’t be done. There’s conflict. So there’s the usual thing. There’s unequal treatment that sits between Haku and other people.

Tom Daly: Subject to, he’s been subjected to, you know, prejudicial comments, racist comments, yeah.

Andrew Douglas: Discrimination, harassment, bullying.

Tom Daly: So he’s seeing her as well.

Andrew Douglas: Seeing her as well. So yeah, so there’s breaches of primary duties. The knowledge and behavior of Dan is such that he’s getting close to reckless endangerment. Why? Because he understands the nature of what he’s doing could seriously harm and he’s indifferent to it. And because under section 143 in Victoria in similar provisions, you attribute the liability of the business to the person who’s doing the wrongdoing unless you can show there’s some severing of that vicarious liability. So Endeavour would be liable as well.

Tom Daly: Yep.

Andrew Douglas: No one’s dead so we can’t go to workplace manslaughter. So, but at this stage Dan could be facing quite a serious fine and potentially some, not custodial sentence, but some real pressures around criminal sentencing. Alright, the next question is, could Haku and Sina make a successful workers’ Compensation claim? Any jurisdiction, anytime, any legislation? Yes.

Tom Daly: Freaking square.

Andrew Douglas: That’s not hard to do. Did Dan and Endeavour discriminate against Haku?

Tom Daly: Yeah, severely.

Andrew Douglas: So race is clearly a protected attribute.

Tom Daly: Yep.

Andrew Douglas: Did he treat them adversely to their detriment? Yes they did. Did they suffer harm? Yes they did.

Tom Daly: And Endeavour are vicariously liable in this.

Andrew Douglas: Unquestionably as well. Alright, the fourth question, would Haku have a good general protections claim? If you got a discrimination claim, it’s a walk in the park to get a general protection. So it’s very easy isn’t it? Was it a hostile workplace? And if so, why?

Tom Daly: I mean clearly a hostile workplace. He’s been subjected to, as we said, like racial taunting.

Andrew Douglas: More in the sexual harassment ’cause hostile workplace deals more with sexual discrimination and harassment.

Tom Daly: Okay. Right yeah.

Andrew Douglas: But it is because if I’m not saying it directly to someone, I’m not sexually harassing you, but I’m making comments for sexualized nature that could harm, that’s a hostile workplace. Plaintiff lawyers are using them quite a lot at the moment as a first point of pleading, saying here are examples of a hostile workplace. This is what was written on a wall, this is what was said, this is what was done.

Then they go to the specific discrimination to show that the organization knew of the level of risk, were careless about it and this person suffered as a result of a culture of harm, which massively includes the general damages claim. So we’re not seeing it as a cause of action on its own, but it’s being used as a leverage place. And I think our last question is, did Dan sexually harass Sina and would she have a good general protections claim? Tom I don’t think there’s a doubt about it. That last message threatening you for sort of sexual favors, it doesn’t get a lot worse than that, does it?

Tom Daly: No. Yeah, it’s clear.

Andrew Douglas: Alright, everyone, there we have got one more. What action should Endeavour take against Dan? The answer is…

Tom Daly: Give him the boot.

Andrew Douglas: Give him the boot because the Fair Work Commission’s going to go, but he is the brother-in-law so he is probably a protected species.

Tom Daly: Yeah.

Andrew Douglas: Alright, look, thanks very much. Great to have you back, Tom. Good to be here. And we’ll see you the same time next week. Cheers.