Andrew Douglas: This would be my favourite subject, I reckon, is having a good policy and then not following it. Or even worse still, shooting for a policy, which sets incredibly high standards of what you say you can do when you can’t do it.

Nina Hoang: Yeah, I think that-

Andrew Douglas: And that’s really what we see more often is somebody hires a smart consultant, well maybe not say smart consultant, who

Nina Hoang: And it always got to comply with the IOS.

Andrew Douglas: Yeah.

Nina Hoang: That’s my favourite.

Andrew Douglas: Yeah, which is 7,412 pages long, just so you know, I read your last email, and which nobody can possibly read, let alone lift up.

Nina Hoang: Yeah.

Andrew Douglas: But it does set out a series of things you can do to prevent injury, which in fact, factually you can’t. But it is evidence, unequivocal evidence of what you say is reasonably practical, so when you don’t follow it, you are definitely liable. And that’s not this case. This was where there was good policy, which wasn’t followed. And maybe you can talk us

Nina Hoang: No.

Andrew Douglas: Through the facts a little bit there.

Nina Hoang: Oh yeah. I think this is not a unique case because the type of injury is so common. So basically the lady was feeding lot through the auger

Andrew Douglas: This for pig farmers, yeah.

Nina Hoang: Yeah, she tripped and then she tried to brace herself, and then her hand went into the auger and chopped off three fingers.

Andrew Douglas: And remember there was, and the policy here talked about the guarding of the auger

Nina Hoang: Yeah.

Andrew Douglas: And there was a guard on the auger, it should-

Nina Hoang: But they removed it.

Andrew Douglas: But they removed it.

Nina Hoang: To fit it into the position. And the officers of the company knew about it.

Andrew Douglas: Yeah.

Nina Hoang: And she’d been doing it for ages with it being unguarded and everything was fine and they had told her, don’t go near the auger, but that’s not sufficient. Like, I don’t think she did anything wrong. It just-

Andrew Douglas: No, no, no. But in fact they knew there was a high likelihood of tripping near it.

Nina Hoang: Yeah. Extreme likelihood, so.

Andrew Douglas: Why do you always take it one step further than me?

Nina Hoang: It was extreme. An extreme likelihood.

Andrew Douglas: But you wrote it.

Nina Hoang: I didn’t write that.

Andrew Douglas: Extreme likelihood, okay? Extreme though. Anyway, can I just say that older plant, which does have things like augers, which have sort of loose fitting guards that people take off and on, like it’s just bad science. There is such huge risks around motorised equipment, particularly augers. Here, there was a decent policy, which had it been complied with, the regulator I thought was pretty lacklustre. It didn’t dig too deep in it.

Nina Hoang: No, it could’ve been way worse.

Andrew Douglas: Yeah, and in fact, the Victorian regulator had it have seen this with the ones we deal with, I would suspect it would’ve been a much more serious prosecution. So I think everyone got away quite lightly on this matter. But this is a case which goes to the very heart of the issue is, it’s rule one, is create a workmanlike policy and procedure that everyone can understand and follow and does prevent the risk of harm.

Nina Hoang: And people have to be trained in that.

Andrew Douglas: And competent, demonstrating competent.

Nina Hoang: And understand like if there’s language barriers, you should be making sure you address those.

Andrew Douglas: But then the enforcement of it is absolutely critical. And you know, Nina and I are involved in prosecutions and all sorts of things at the moment where enforcement is a major issue and failure to enforcement with good policy has created liability. There’s the sort of stuff we deal with every day.

Nina Hoang: Yeah.

Andrew Douglas: But too often what we get is the crazy policy, which creates risks, which can never ever be enforced, written by a consultant who has nothing to do with the business. We’re dealing with a matter at the moment where actually there’s some really good, sensible hands-on policy. If we had to complied with it, we would’ve had no risk at all. So I want you to think about it, workmanlike simple, practical policy that’s very clear, easy to understood by everyone who’s dealing with it. Good enforcement, good education, good competency methodology. Even if something bad happens, you’ll not be liable.

Nina Hoang: Yeah, I think that’s the key point, ’cause often people say to me, but it was the employee doing the wrong thing. But if you don’t have those checks in place that you make it easy to understand, you’re enforcing it, then that’s not defensible.

Andrew Douglas: Yeah.

Nina Hoang: But if an employee goes out of their way to get around all those things, then WorkSafe would never prosecute you

Andrew Douglas: No, no.

Nina Hoang: Cause you’ve done everything you reasonably can.

Andrew Douglas: That’s right. So topic today, I guess is a bit of an axe to grind for both of us, which is get the policy right, get it understood, get it competent, get it enforced, you won’t actually have any injuries. That’s the start of it. But should something happen, you’ve got a complete defence.

Nina Hoang: Yeah.

Andrew Douglas: But please steer away from these crazy policies created by people which are hundreds of pages long and take it nowhere and just create liability. Why don’t we go and try the problem for the day.

Nina Hoang: Yeah, we’ve got to hurry.

Andrew Douglas: Yeah, we’ve got to hurry, hey, we do, yeah.

Nina Hoang: But I think it’s a shorter one today.

Andrew Douglas: It is a shorter one.

Nina Hoang: Yeah.

Angel wanted to work from home. The entire admin team worked flexibly. Policy made it clear that you must be at work for a minimum of 60% of your working week unless you had a flexible work agreement or specific written authority. Angel had a 7-year-old child named Destiny. Her husband, Titus, already worked full-time from home and was a self-employed accountant. He always kept Destiny during the work week. Angel started working just two days a week. She arranged her attendance around meetings and nobody noticed as no one kept a record of who worked when, but it didn’t take long for her boss, Gamin,” what kind of name is that?

Andrew Douglas: Street Urchin. Do you know what Gamin is? Street Urchin.

Nina Hoang: To notice her drop in performance and availability.”

Andrew Douglas: You only ever got to ask me with the names I put in there.

Nina Hoang: Angel had started dropping off and collecting Destiny from school, which meant that even on her work days, she was late in and left early. Destiny was a special needs child. She had some learning disabilities, which were known to her employer but Titus had always managed this. Gamin met with Angel and explained that she needed to be at work 60% of the time, walking her through the drop in her attendance and performance. Angel was irate. She pointed out the work practises of every other person in the admin team and asked why she was being singled out.

Gamin explained that the rules were the rules and her performance and availability had declined when she started working more flexibly. Angel responded that she had a special needs child, which he knew full well. She also explained that Titus needed a break, that as family they were struggling and that it was impacting Destiny. Gamin acknowledged this, but formalised the process with a written warning for breaching the policy”.

Andrew Douglas: All right, does Angel have a worker’s compensation claim if her doctor says her treatment caused her psychological injury? The answer is absolutely yes.

Nina Hoang: Yes. Yes.

Andrew Douglas: Okay.

Nina Hoang: This is such a common scenario now

Andrew Douglas: Yeah.

Nina Hoang: With work from home policies, these things.

Andrew Douglas: Yep.

Nina Hoang: It’s a big problem.

Andrew Douglas: Is the apparent poor organisational justice around the team, now remember, of the 14 elements of what are psychological hazards, organisational justice, how you treat people.

Nina Hoang: Yeah.

Andrew Douglas: Fairly

Nina Hoang: And if you treat some people differently to others.

Andrew Douglas: Yeah, so do you think here it was a psychological hazard?

Nina Hoang: Oh yeah, 100%.

Andrew Douglas: Yeah. Can I just say, as Nina said, the reason this problem is being agitated a bit today is we’ve probably got half a dozen matters over the last few weeks, which deal with flexibility in work and how it’s being managed.

Nina Hoang: Yeah.

Andrew Douglas: And I want you to remember, this is at the heart of it, it creates such angst when someone looks across the desk and the next cubicle and sees someone hasn’t come in for four days. And yet your boss is saying, you’ve got to be there. And you go, how does this work?

Nina Hoang: Yeah.

Andrew Douglas: Would Angel have a discrimination or a general protections claim? Sorry, not a general practise

Nina Hoang: Yeah.

Andrew Douglas: But that would be a general protections claim.

Nina Hoang: Yes. She probably has a general practise claim.

Andrew Douglas: Sure there’s one of those as well. But look, did she have a protected attribute? Yes.

Nina Hoang: Yeah, caring responsibilities.

Andrew Douglas: Caring responsibilities.

Nina Hoang: And they were aware of it as well, and acknowledged it.

Andrew Douglas: Yes. The issue really here is, particularly under Victorian law, the test is so easy to be discriminatory, and under changes in federal law as well. What I want you to understand is she has raised and people knew of her issue, the fact that that changed over time because of her husband, once she disclosed it, what you had to do was stop, listen, reflect, and work through it. But by formalising the warning

Nina Hoang: Yeah.

Andrew Douglas: You’ve hit it.

Nina Hoang: Yeah. And I think sometimes there’s a misunderstanding that people have to raise it through a flexible work request in order to raise it. That’s not the case. The fact that she’s disclosing it to you means that your red flag has a popup and realise, hey, this is an employee who needs further support

Andrew Douglas: And I need reasonable adjustments.

Nina Hoang: Yeah.

Andrew Douglas: What’s the reasonable adjustments and then consider that.

Nina Hoang: Yeah. Yeah.

Andrew Douglas: And have we got any other questions? I don’t know if we do, we do. Would the treatment of Angel be a proper basis for a union official to enter without notice on the basis of a psychological safety? Yes.

Nina Hoang: Without notice.

Andrew Douglas: Yeah. Yeah. Well, significant hazards. She becomes incredibly distressed. People are being treated differently. There’s a lack of psychological safety in the place.

Nina Hoang: But without notice, like, I don’t know. Like it’s not like tomorrow she’s going to do something. I think they can give the 24 hours notice, surely.

Andrew Douglas: Ah, well, I’m just saying they would, they would use that now, and they are using it now under the new entry rights, and saying, no, no, no, there’s psychological safety risk, it’s imminent required right now, I’m going to go in.

Nina Hoang: But how can they justify that? Because it’s not like if they waited 24 hours, anything else would change.

Andrew Douglas: Cause there’s an imminent risk of injury. That’s the argument.

Nina Hoang: They’re just pushing the boundaries.

Andrew Douglas: Well, they are pushing the boundaries, but the answer is, with a greater awareness of psychosocial safety and hazards, it’s hard to argue against it. Whereas with physical safety, it was much easier to argue about.

Nina Hoang: Yeah, you could quarantine the risk.

Andrew Douglas: So, I think you can push back and say, well, look, I’m happy to talk to you about what has occurred, but there’s no reason to speak, it’s one person.

Nina Hoang: Yeah, and then that we’ve put these supports in place or whatever.

Andrew Douglas: Yeah.

Nina Hoang: Yeah. “If she put the warning in dispute under the enterprise agreement dispute clause, would her warning be removed by the Fair Work Commission, assuming it had power to arbitrate?”

Andrew Douglas: Absolutely.

Nina Hoang: Whoa. That is a left of field-

Andrew Douglas: Well, no, the reason I’m, once again, we don’t have, the sharpest unions, as we used to have, but 15 years ago, this would’ve gone in dispute straight away

Nina Hoang: For a warning.

Andrew Douglas: Yeah, for a warning.

Nina Hoang: Oh gosh.

Andrew Douglas: Particularly in our unionised site where you have maybe 60 to 70% membership and they were really challenging and trying to get leverage, they would put it in.

Nina Hoang: Crazy.

Andrew Douglas: So, I just want you to know there’s more remedies out there than what we think there is. And if you go to your dispute cause, you will see there is a right to put in dispute any performance or disciplinary in that nature normally, ’cause the unions have gradually been changing the model to get it that way.

Nina Hoang: Yeah, so maybe have a look at those causes and get them

Andrew Douglas: That’s what I’m asking today, okay?

Nina Hoang: Adjusted.

Andrew Douglas: Now Nina, you have a great honeymoon.

Nina Hoang: Thank you.

Andrew Douglas: And enjoy the world. Tell me what Japan’s like

Nina Hoang: Thank you.

Andrew Douglas: When you get back.

Nina Hoang: Yeah, will do. All right everyone, well ’cause I’m going to see you, Merry Christmas and Happy New Year.

Andrew Douglas: Yeah, and thumbs up.

Nina Hoang: Yeah, give us thumbs up.

Andrew Douglas: Cheers, bye-bye.

Nina Hoang: Bye.