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Friday Workplace Briefing

Labor’s New IR Platform Explained

Understand the major changes, their purpose and the effect on employers

The Secure Jobs, Better Pay amendments to the Fair Work Act 2009 (Cth) have driven apocryphal commentary from many lawyers. The truth is much simpler and less scary.

Andrew and Mathew explained the major changes using simple case studies so the purpose and the effect of the changes is understood.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: Mathew, how are you?

Mathew Reiman: I’m doing very well, Andrew.

Mathew Reiman: This is the week that was-

Andrew Douglas: Not this Friday. But we’re going to do the same thing, so-

Mathew Reiman: That’s right.

Andrew Douglas: And there’s been changes in the government from last week, so I think, good that we’re doing it this week.

Mathew Reiman: Yeah, so nice we’re going to do it twice.

Andrew Douglas: That’s it, that’s right, we should be better at it. You know, we should. But I want you to notice my haircut.

Mathew Reiman: Yes.

Andrew Douglas: You haven’t noticed that?

Mathew Reiman: No, I didn’t part, Andrew.

Andrew Douglas: Didn’t look so bad. So I should bark during this. You will understand.

Mathew Reiman: There’s a bit of interesting things-

Andrew Douglas: Couple of interesting things, we are obviously going to be talking about the changes to the industrial relation pushed by the labour government. But let’s quickly just crop back into respective work. Cause we’ve seen a really interesting amendment being moved by Monique Ryan, I think you picked that up.

Mathew Reiman: Yeah.

Andrew Douglas: The labour side, particularly the labour law firms are very unhappy about the removal of the cost jurisdiction.

Mathew Reiman: Yeah.

Andrew Douglas: From the sexual harassment claims. Cause they used to run though with no fees. And you recall both Mathew and I raised this last time, real slap in the face for plaintiff firms.

Mathew Reiman: Oh, absolutely.

Andrew Douglas: Even though it’s an accessibility issue, which means anyone can bring it, but they’ve gone crazy in the last couple months.

Mathew Reiman: Oh yeah, they have. I mean and it’s hard. Accessibility is the no cost jurisdiction, Andrew. But I think it’s right. It’s missing the point, which is that it does cut off some access to justice. for people.

Andrew Douglas: Well I don’t think it does.

Mathew Reiman: That’s great.

Andrew Douglas: I think what it does that lines the pockets of lawyers and labour. Bottom line for that is, if there is a finding made, Mathew, is this correct? The finding made in the jurisdiction that there was, that a person was actually sexually arrested or discriminated against, then there kicks in cost jurisdiction.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: And I think what that means in the negotiation process, there will be a no win, no fee running, but they will require a view in any settlement to acknowledge the sexual harassment.

Mathew Reiman: And that’s a big change.

Andrew Douglas: That’s a big change. So you know, the strategy for us is if you coordinate fight and you have a defensible case, just keep pushing because labour law firms will have no money to be running the case at all.

Mathew Reiman: Yep.

Andrew Douglas: Unless they can actually prove it. So interesting.

Mathew Reiman: Yeah, it’s interesting.

Andrew Douglas: And the difficulty is, this is such a complex jurisdiction, now Queensland’s just moved for changes its legislation around sexual and gender discrimination. So it’s a much broader definition. It is not just sexual harassment but gender discrimination and it’s really up the ante, including in its industrial relations committee, a commission, a capacity to inject.

Mathew Reiman: Yes, that’s right Andrew.

Andrew Douglas: Yeah, that’s hard Matt, isn’t it. So in Queensland there are now respected work. There is the new industrial reforms.

Mathew Reiman: Yep.

Andrew Douglas: There is the state legislation and the federal legislation that you’ve got to navigate if you are in Queensland, four different jurisdictions.

Mathew Reiman: Yeah.

Andrew Douglas: Dealing with exactly the same stuff.

Mathew Reiman: Something we’ve talked about before, Andrew. There’s multiple layers of legislation in the employment space. But again, an interesting trend of sort of the state governments seemingly wanting to take it that big step further than-

Andrew Douglas: And they have, ’cause here if you have sexually discriminated or harassed someone or treat someone different as gender, then all the defences in unfair dismissal fall away. So whether it’s harsh, doesn’t matter. Once that is proven, you’re out.

Mathew Reiman: Yeah. It doesn’t matter what other circumstances might arise.

Andrew Douglas: And it’s so strange. This would come from labour when it bites at the very heart of a worker driven piece of legislation where the objective is to protect the worker. They’ve also changed the one of the objectives also to protect women in that process.

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: So interesting, anyway and aside, but is starting to show you, there are now four different ways you have to navigate through to get the end result. Whether you are a plaintiff or a defendant.

Mathew Reiman: Yep.

Andrew Douglas: Now Matt…

Mathew Reiman: Secure jobs, better pay.

Andrew Douglas: Yeah, secure jobs, better pay and more complexity.

Mathew Reiman: Yeah more complexity.

Andrew Douglas: 1991, Paul Keating said to Bill Kelty, “This whole idea of large awards and complexity. It’s just rubbish. We should make it simple so that individual employers can negotiate directly with their employees to have a much better and smarter system.” That was a good idea. It was a great idea.

Mathew Reiman: Well articulated, well accepted for almost 30 years.

Andrew Douglas: It was the beginning of a great economy that grew out of that sort of flexibility. And the labour government had come in and almost torn that up. It’s interesting to see because there’s a lot of rejection across the cross benches about the dramatic nature of this.

Mathew Reiman: Yeah.

Andrew Douglas: But I just want to say, the major change in all of secure jobs is the insertion of dispute provisions where there wasn’t before.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: And what that really means is another buy back in for unions to keep fighting all the way through. And it means you’re always going to be before a commission, sometimes a court because there’s been greater access to dispute every single issue that’s there.

Mathew Reiman: That’s right.

Andrew Douglas: But Matt, look, I’ll flick over to you and let’s deal with multi-bargaining cause that’s the major one, which I think is most contentious.

Mathew Reiman: I think that’s right, Andrew. Lots of bits and pieces around the IR space. You know I said last week, you could almost do a whole topic around it if we wanted to. But the multi-employer bargaining, what they’re calling, the single interest authorisation bargaining effectively is a model of an employee. More likely the union, bringing several employers under the umbrella of a single enterprise agreement. Bargaining for it as a whole and as a collective. And bringing parties to a table to negotiate that they might not have otherwise wanted to get to. So there’s been some interesting shifts when we were talking about this last week. Really it sat around this two key elements to it. The first parties, those employers have to have a common interest with one another to be able to be joined. So must be some sort of shared character research.

Andrew Douglas: So it can be geography.

Mathew Reiman: Yep.

Andrew Douglas: It can be manufacturing or food processing.

Mathew Reiman: Yep. You’re under the same award.

Andrew Douglas: A whole lot of things. Again, no clarity around it.

Mathew Reiman: No, no. It’s left open-ended. So it’s not even some nice clear examples that these are the things that. It’s three that it could be. And then really the big question, which is the part that’s changed now, if we had been talking about this last week, we would’ve said all you needed to be roped in effectively in this was that a majority of employees across all of the employers who were named. So let’s say for example, there was about 10 employers. They had 10 employees each. All it needed was 50 as a whole. Even if none of yours had said yes, you could be roped in. What they’re now saying they’re going to change is in order for you to be roped in, you still need to have a majority of your employees in your business wanting to be a part of that.

Andrew Douglas: Can I just say, the first one is the old general award provision?

Mathew Reiman: It is.

Andrew Douglas: Where they set a general award based on a particular interest. And then you could be simply roped in if the union made application to the commission.

Mathew Reiman: That’s right.

Andrew Douglas: There’s no choice about it.

Mathew Reiman: Yes. Yeah.

Andrew Douglas: Now, bit harder now cause there’s some obvious exclusions. Like what is a small business can’t be.

Mathew Reiman: Small business. Yep. If you have your own enterprise agreement or if you’re able to, another recent change, if you’re able to demonstrate that there’s been six months of good faith bargaining in place or if you’re part of another signal interest authorisation.

Andrew Douglas: Now here’s the changes that are occurring. Matt’s told you about one, which is if a majority of your employees don’t support it, the clear strategy about that is be close to your employers.

Mathew Reiman: That’s right.

Andrew Douglas: Don’t allow them to become captive for the union narrative.

Mathew Reiman: Yep.

Andrew Douglas: But the next one is what is a small business is going to be fought pretty hotly in the senate.

Mathew Reiman: It is.

Andrew Douglas: And it’s not going to be 15, I think probably going to be 50 people. That’s an AFT, but could be as high as a hundred. And we are going to write a very detailed response for all of you on this. Once it finishes the senate.

Mathew Reiman: That’s right. Lots of moving parts in it.

Andrew Douglas: So let’s have a look at what the case study says, anyway. I’ll read this one out, Matt.

Mathew Reiman: Excellent.

Andrew Douglas: Clem’s Carrots was a food processor in South Dandenong. It paid over award wages. It employed 212 people. Clem’s received notification from the Fair Work Commission, that the AMWU was seeking to join Clem’s to a new food processors EA in the Greater Dandenong area. The CEO, Catriona looked at the list of other prospective employers and noted immediately that in its three major competitors were also named. Clem’s EA had expired. But how it had paid its workers was not easy to understand as it used no base wage, merely increments from past EA’s. It also added clever shift arrangements in seasonal work status, unlike its local competitors. When Clem’s attended the Fair Work Commission to argue against its inclusion, it raised four issues. Its current EA underwrote its profitability, and any loss of bargaining power could erode its financial strength. It was the smallest of its competitors and they could use the EA to make it unsustainable. Their investment capital processes and food they processed was mostly for the Chinese market. And their competitors were mostly for domestic consumption. They were not similar and had different skills and economies in the way they worked. There was no union members at Clem’s and the employees had voted unanimously to reject the Union’s overtures. So let’s go to what the questions are there. Would any of the above arguments succeed? And which one?

Mathew Reiman: The fourth one now actually the strongest. Yeah. When we did this last regard, we had a good chuckle… but the first three look potentially, common interest is left open-ended. So what we would be saying is, if you’re stuck in this position, let’s assume for a moment the fourth one’s not there. You’d run all these arguments, right? Cause it’s untested before the commission, what they’ll think about. But really your fourth one now that a majority your employees have unanimously voted to reject the unions overtures. That’s the evidence.

Andrew Douglas: So this is the alignment of your industrial relations with your business strategy.

Mathew Reiman: That’s right.

Andrew Douglas: It is the key part. if Clem’s argued any EA that excluded seasonal work, which the union exceeded in excluding their competitors prior areas would undermine their export focus and place other export food business at risk, listing over 20 non-Dandenong based food manufacturers and processors who utilise seasonal work methods to accommodate the seasonal availability of their core products. Could they win this argument for exclusion? Matt, this is the public interest test, isn’t it?

Mathew Reiman: It is. Yeah. It is. I think and and I mean looking at it narrowly within the confines of the business as well, it’s another example of the common interest of the public interest sitting together here. So you’re not just saying, it’s just not good for me. You’re saying it’s actually not good for all of us. It gives the Fair Work Commission more leverage to be able to say, actually it’s not just about you.

Andrew Douglas: Yeah. Okay. Let’s go into the next subject, which is flexible work arrangements. All right, Matt, There’s nothing particularly new about the flexible arrangements. 1965 obligations to allow people to work flexible if they caring responsibilities, returning for parental leave and those things. There is a couple of changes in that, it places a significant greater onus on the business to document in detail what is the business reason.

Mathew Reiman: Yes.

Andrew Douglas: That the person can’t be given flexible work.

Mathew Reiman: Absolutely, Andrew. So really here now, it’s no longer sufficient just to say, I have a reasonable business ground order referred to that as some amorphous term. You really do need as an employer now to get your policy in order and get your decision making and processes, excuse me, in order. So you’re documenting these business reasons and explaining that evidence to an employee if you choose to reject a request for flexible working.

Andrew Douglas: You capability assessment, your job descriptions.

Mathew Reiman: Yep.

Andrew Douglas: Everything need to be tidied up.

Mathew Reiman: Absolutely.

Andrew Douglas: Because there are times genuinely when you can’t provide that flexibility.

Mathew Reiman: That’s right.

Andrew Douglas: If you, HR infrastructure is open and you can, it doesn’t matter what you write in a letter, they’re just going to go. But can’t you hire someone for a few hours.

Mathew Reiman: That’s right, Andrew. And it’s more important now than ever because of the, you know, as you mentioned earlier, dispute mechanisms into this.

Andrew Douglas: And that’s the new thing here. You can not only dispute the process that’s been underway. You can now dispute as a matter of fact whether there’s a reasonable business case.

Mathew Reiman: Well, that’s right. And then have the Fair Work Commission stand in your place and decide what is or what isn’t. So, I mean an absolutely.

Andrew Douglas: Just like the terrible bullying orders.

Mathew Reiman: Yes.

Andrew Douglas: Mathew speaking to Andrew, so you have to build a wall between, The Fair Work Commission can actually order that.

Mathew Reiman: They can.

Andrew Douglas: It’s crazy.

Mathew Reiman: It’s ridiculous.

Andrew Douglas: This is exactly the sort of stuff. Soon, you’re going to lose control of your own workplace because of these derivative powers that have been invested in the Fair Work Commission.

Mathew Reiman: That’s right.

Andrew Douglas: Let’s have a look at a case study here cause we’ve spent a bit of time on the first one.

Mathew Reiman: As we do.

Andrew Douglas: Okay, off you go.

Mathew Reiman: Gary cares for his mother, Jean, who suffers the early onset of Alzheimer’s disease. It causes her to have trouble with recent memory. Makes her anxious when alone and she has mood volatility. He has been working for Mason’s Menswear as a shop assistant from 9:00 AM to 3:00 PM, five days a week. This allowed him to be present when the carer left at 4:00 PM, prepare her meals and settle her in bed. Recently, she had a bad fall hurting her hip. Gary took carer’s leave during the acute healing time, but wrote to his employer on the 12th of March, 2022 saying, pursuant to section 65 of the Fair Work Act, “I seek flexible working arrangements to help manage my invalid and dementing mother. I have arranged all the care I can for her, but I cannot cover the time between 1:00 PM to 5:00 PM, your opening hours, on weekdays. Please confirm I can alter my times of work to help my mother.” Mason’s wrote back within two days saying, “Dear Gary, terrible news for you. I’m afraid we cannot accommodate your proposed changes. We’ve spoken to our part-time staff and none are willing to change their hours or extend them to assist the business.”

Andrew Douglas: So first question, can Gary apply to the Fair Work Commission?

Mathew Reiman: Yes.

Andrew Douglas: Yes. And what are they likely to say? They’re likely to say-

Mathew Reiman: So where’s the procedural? They’ve not met the procedural requirements at all.

Andrew Douglas: And then they’re also going to say, “Well, where’s the business argument?”

Mathew Reiman: Absolutely. Yeah. Yeah.

Andrew Douglas: And as long as if, it’s easy to replace those hours. What you’ve got to do is extend the hours, pay overtime for short period of time.

Mathew Reiman: Yeah.

Andrew Douglas: If it was movement of half an hour from one hour to one and a half hours where you could say, “Look under the award, I can’t do that.”

Mathew Reiman: That’s right.

Andrew Douglas: There’d be other arguments. But here it’s like a reverse onus. You got to be able to demonstrate it. And here they have it.

Mathew Reiman: That’s right.

Andrew Douglas: Let’s go on the next exciting thing we’re doing, prohibiting pay secrecy. Matt, your favourite.

Mathew Reiman: We’ve generated some great discussion between you and I.

Andrew Douglas: Okay. Well, this is a complete bloody nonsense. I got to tell you, pay secrecy is designed to prevent people from being able to hide from women differential pay.

Mathew Reiman: Yeah.

Andrew Douglas:And that could be done by a requirement to disclose or remuneration to a regulator. But one of the things that is private to people and seen as being private is, how I’m paid. So many people will be hurt and offended by this.

Mathew Reiman: Oh, absolutely. Yeah.

Andrew Douglas: What’s going to happen is that any contract or any workplace instrument.


Andrew Douglas: That was created before the date on which this becomes law will not have to disclose.

Mathew Reiman: No.

Andrew Douglas: If there’s a pay secrecy clause.

Mathew Reiman: That’s right. It’ll be enforceable.

Andrew Douglas: And, if there is a cause in anyone after that, it will be void. But it’s not very clear what will happen with the policy, other than even if a policy is there for remuneration. If it’s for remuneration in its broadest possible sense, then, although it won’t be void. It won’t be enforceable, I think is about as good as it gets.

Mathew Reiman: Yeah, that’s right, Andrew. Look, they very specifically use the language of contract of employment and fair work instrument here. So it does leave it open to that interpretation. And I think importantly, as you’ve identified, it does create this sort of two tier system in workplaces. Because you’re going to have a class of employees who have no workplace right. To ask someone about remuneration or disclose it and another class of employees who come in after the legislation’s in place who do have that problem.

Andrew Douglas: What Mathew just said is really important because these are workplace rights.

Mathew Reiman: Yes.

Andrew Douglas: To disclose or to inquire. That’s is a workplace right.

Mathew Reiman: Absolutely. Absolutely.

Andrew Douglas: So now there’s a third group of people, Mathew, cause this is really stupid legislation, which is we have a contract which has a discretionary element or a pay rise, which has a discretionary component, starting before the day it becomes law, but ticking in or jumping into place afterwards. That too can be disclosed and requested and as a workplace right. I mean-

Mathew Reiman: It’s a nightmare.

Andrew Douglas: I think it was my young son here just, WTF, dad. We’re really going to deal with this. So let’s have a look at a problem.

Mathew Reiman: Yes.

Andrew Douglas: And just see how it plays out. Minnie was the production manager at Wields Towbars site in Scoresby. She entered a contract in October, 2021 with fixed remuneration of 140,000 per annum, an STI. That’s a short term incentive with the potential bonus up to $50,000, based on KPI’s and a long term incentive of $200,000 based on KPI’s. If the company successfully floats on the stock exchange for 2024, it looks likely it will float on 30 June, 2023. There was a strict pay secrecy clause in the contract. Minnie was asked by Noel, a new production manager, the Altona site, what she was paid. Minnie told him. Shortly after the company called Minnie into the office and after fired her, it was procedurally fair. So we’re getting right to the workplace right issue. Okay. Let’s have a look at the questions. Would Minnie have a strong general protections claim about disclosing her wage?

Mathew Reiman: We read her this one a little bit, didn’t we?

Andrew Douglas: We did. We did.

Mathew Reiman: We did. So the timing was really important in this one because her contract with the pay secrecy clause came into effect before the bill did. So say for there being any variations, which we don’t know about. Actually, she wouldn’t have the workplace right. Because if she’s not, it’s not coming after the legislation came into effect and the pay secrecy clause in her contract would be enforceable.

Andrew Douglas: Would Minnie have a strong general protections claim about disclosing her STI and LTI, she’s currently on?

Mathew Reiman: So assuming for a moment that last part isn’t the case, this is the part that you and I have discussed in some detail, Andrew. Remuneration not defined in the Fair Work Act at all. And not specifically in the context of this provision. I think it’s arguable that incentives could be, but I think there’s also an argument on the opposite side that says this could be something that’s bigger than or outside of.

Andrew Douglas: I think it’s likely to be a workplace right.

Mathew Reiman: I think so. I think so.

Andrew Douglas: And I think it’s going to be arguments run by plaintiff law firms. Cause they have ample opportunity and this legislation run everything. They feel like.

Mathew Reiman: Yes.

Andrew Douglas: That they’re going to run this argument and I think that they’re going to find a very happy tribunal to deal with it.

Mathew Reiman: Absolutely.

Andrew Douglas: If it relates to a woman, if it relates to any other person, I expect tribunals going to be less interesting.

Mathew Reiman: I think that’s fair, Andrew.

Andrew Douglas: If the answer is yes to question two, what if the STI and LTI were part of an incentive policy that is a strict secrecy clause? Now I reckon this is gets a bit harder, doesn’t it?

Mathew Reiman: It does. Yeah.

Andrew Douglas: It does. Because we can say with comfort, if you read the legislation in its ordinary and natural way, then the policy itself can have a pay secrecy clause.

Mathew Reiman: That’s right.

Andrew Douglas: And the remuneration could be read as only that relating to the contract.

Mathew Reiman: Absolutely, Andrew. But it buffers against the fact that the workplace rights are there then. So although it might not be void in the same way that the cause and the contract is, it’s whether it breaches the general protection.

Andrew Douglas: Yeah. And I think the argument, it’s a 50-50 argument to say, look, remuneration must be read in the context of the document that creates it. That’s a void under the legislation.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: And therefore a policy that’s a general incentive policy for all workers, will we not subject to the post secrecy clauses.

Mathew Reiman: Yep.

Andrew Douglas: I think it’s an argument that’s worth considering. It’s worth investment in if you really want to do it. But I’m telling you it has risk. So let’s jump onto the next thing, which is another crazy one, which is fixed term contracts. And here’s something they tried to fix that doesn’t need to be fixed.

Mathew Reiman: That’s right.

Andrew Douglas: So this is the dumbest piece of legislation we’ve seen for a while because already fixed term contracts were well controlled and understood by caseload.

Mathew Reiman: Yes.

Andrew Douglas: But instead of that, what they’ve said is, any contract for more than two years for the same or substantial nature work. So you can have a number of contracts, but nothing greater than two years, is no longer a fixed term. And you fall over into being a permanent employee.

Mathew Reiman: That’s right. And all the rights of permanent employment flow as a matter of law.

Andrew Douglas: Well, the interesting part about that is, as a usual exceptions, which are already there by the case coastline.

Mathew Reiman: The seasonal work and-

Andrew Douglas: Got where you’re part of government funding and it’s for a fixed up. So it’s all there. Okay. Or whether it’s entirely different work with another cover. So it’s actually less helpful for employees than the current case clause. Can I just say?

Mathew Reiman: I think that’s fair. Very fair.

Andrew Douglas: Let’s test this for the problem. Just for a bit of fun.

Mathew Reiman: Yeah.

Andrew Douglas: Okay. I think, is it me reading this time?

Mathew Reiman: No, I think it’s mine.

Andrew Douglas: Off to you mate.

Mathew Reiman: Emma was an electrical engineer who worked initially as a project manager for Grow Build, a building company. The project management engagement was for an 18-month fixed term contractor to supervise the electrical infrastructure works of around 15 electricians and apprentices in a new large CBD building. The contract commenced on one February, 2022 at the conclusion of the first fixed term contract. After the new legislation came into effect, she was offered a further 18 month fixed term contract as an electrical engineer. Her new role included documenting the electrical needs and strategic electrical design components in a design and construct tender process for a large sporting arena. In both roles, her wage was 150,000 per annum. The latter role was a standalone role and involved no supervision of others. Emma brought an application before the federal court saying that Grow Build was involved in anti-avoidance behaviour by trying to avoid making her a permanent employee seeking declaration. She was a permanent employee and civil penalties.

Andrew Douglas: There’s a couple things. 150,000, I’ll put it there for a reason, haven’t I?

Mathew Reiman: Yes. Yeah. Just to bring her under the high income threshold.

Andrew Douglas: Which means that she is subject to it. If she was over that she’s not though. Now, does Emma have any chance of winning in the federal court, Matt?

Mathew Reiman: Well, I think this turns on the saying or substantially similar. So what we would argue here is, well, it’s actually not substantially similar. The nature of the work being performed under the two roles is different enough. But it’s going to turn a lot on how broad the tribunal wants to go with substantially similar, I think.

Andrew Douglas: I think you’re right, Matt. I think this is a definite carve out. And this shows how I did this just to show how to manipulate the legislation. So you have these people forever on these things as you switch them between roles in larger enterprise. Super done, anyway. Could Emma have made an application through dispute process in the Fair Work Commission and what outcome could she have achieved?

Mathew Reiman: Yeah, so she could have, so she would’ve had to have tried to resolve it at the workplace level first and then could have made the applications and then the orders and outcomes that she could have achieved. Let’s assume for a moment that the court was to find it was substantially similar that could have been declared a permanent employee and all the benefits of permanency.

Andrew Douglas: Well this is under the Fair Work Commission. No, no, you’re quite right. Because that’s the finding under the court. And if it was under the Fair Work Commission to go to conciliation.

Mathew Reiman: That’s right. Sorry. Yes.

Andrew Douglas: It’s a consent jurisdiction.

Mathew Reiman: It is. It is.

Andrew Douglas: And you’d be crazy to consent to the jurisdiction.

Mathew Reiman: Oh yeah. Absolutely. Why would you.

Mathew Reiman: The same breadth of orders. But I think the difficulty here is if Emma gets an injunction, she goes off to the federal court, she makes her application, it’s all over. We’re going to see the same in the sexual harassment case.

Mathew Reiman: Same issue.

Andrew Douglas: Just remember the use of the federal court would be much more strategic.

Mathew Reiman: Yes.

Andrew Douglas: Because the nature of the tests that exist give you that entitlement to race off quickly. So if she can then push point to substantially similar. She’s off, isn’t she?

Mathew Reiman: Yeah, she is. That’s right.

Andrew Douglas: Okay. All right. Let’s go to the next one. Okay. The new sexual harassment provision that’s come in, I think let’s talk about this cause this is our fourth area to look at. At the moment, We have 8 different jurisdictions locally, state and territories. We have one national.

Mathew Reiman: Yep.

Andrew Douglas: Okay. We have respect at work. So your county, we’re up to 10, are we?

Mathew Reiman: Yep, that’s right.

Andrew Douglas: Yeah. And now we’ve got this.

Mathew Reiman: Yes. Yeah.

Andrew Douglas: And we’ve got safety legislation.

Mathew Reiman: Oh yes, well that’s a whole other.

Andrew Douglas: So can I just say to you, this is a complete mishmash and was unnecessary.

Mathew Reiman: Yes.

Andrew Douglas: Importantly here, the new sexual harassment provisions do a couple of really obvious things. One is, it’s very clear about vicarious liability.

Mathew Reiman: Oh, very clear.

Andrew Douglas: It’s very, very clear about the duty that exists on an employer to prevent any form of sexual harassment.

Mathew Reiman: Yep.

Andrew Douglas: Which adds on to what exists under respect at work.

Mathew Reiman: Yes, absolutely.

Andrew Douglas: And in both Queensland and Victoria and positive duties that exist there. But what’s most concerning is that it spreads beyond the employer.

Mathew Reiman: It is.

Andrew Douglas: So it’s, to a PCBU or a Person Conducting a Business or Undertaking. So it even looks at informal relations that exists with it.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: Now remember, what you’ve got under respected work is this prohibition against conduct.

Mathew Reiman: Yep.

Andrew Douglas: Which even though it’s not directed at a person breaches the obligations that exist. Just imagine. I want you to keep remembering that. Here we’ve got a very clear look. If it’s intentional or if objectively it would be unreasonable and broad test again, then you’re breaching this piece of legislation. But it gives you the entitlement to race off and get an injunction.

Mathew Reiman: Yes. That’s right. That’s right. I mean, when we talk about the balance of convenience, one of the main tests, spring injunction, a court will look at what does the legislation that sits around this set as the expectation and standard of behaviour. And there is now, I mean, if there was ever any doubt, there is now, especially no doubt that in respect of this particular provision, it is a prohibition on that conduct occurrence. So if sexual harassment is happening, you’re off to get that.

Andrew Douglas: And change the objective and purposes in the act to actually prevent it. Which is the lens through which any court comes, says, okay, the purpose is this. And if there’s unquestionable evidence that it has been happening, which is often the case, I might say.

Mathew Reiman: Yep.

Andrew Douglas: It’s, you know, you’re arguing about the big stuff, not the little stuff.

Mathew Reiman: Yeah, that’s right.

Andrew Douglas: But if you’ve got the little stuff, it’s all over.

Mathew Reiman: It is.

Andrew Douglas: You’ve got the injunction. Now remember, these are claims which will have the same as the common law type of claims, in general damages, in economic laws. These are very substantial. This particular change is the most serious challenge.

Mathew Reiman: Yeah. We think it’s gone a bit under the radar.

Andrew Douglas: And this is the plaintiff of jurisdiction.

Mathew Reiman: Yeah.

Andrew Douglas: This is the one which will be leveraged now. There’s not leverage elsewhere because here is a place where you just go and get the injunction.

Mathew Reiman: Yeah.

Andrew Douglas: And once you get the injunction, everyone settles because they understand prima facing case. That’s all over. As Matt said, the balance of convenience says if there is a wrong being done, when I look at what’s happening, should I stop it being done? And if I’ve got an arguable defence, well that will stop the injunction being done. But here because of the prohibition and because of this obligation, it’s all over.

Mathew Reiman: Absolutely.

Andrew Douglas: So look, let’s have a look at the problem and just work it through. Ruth was employed by Fix-it-Forklifts to liaise with Pats Stevedores at the Melbourne docks. She was employed $120,000 per annum. FIF and Pats were not in a formal joint venture, but were collaboratively in unloading the pallets from containers. At her interview for the job, both FIF and Pats were present and Pats made it clear they paid 50% for wage and accruals to FIF. And she could be directed by either on how to work. The job was the allocation of FIF forklifts as required by Pats. There is no doubt that Ruth was subjected to repeatedly sexually inappropriate comments from Pats’ wharfies where she worked. She also experienced comments belittling her as a woman being incapable and stupid as a woman and not understanding how docks worked because she was a woman by both FIF and Pats’ senior management. And that’s my very long sentence that I wrote. She spoke to a direct boss at FIF and explained that the aggregational psychological impact of the daily misconduct. He laughed and said she needed to toughen up. They mean nothing by it. Pretty important last few words. Cause there’s no doubt here, there’s no fighting that it’s occurred.

Mathew Reiman: No.

Andrew Douglas: Okay, let’s go. Could she seek an urgent relief to stop harassment? And could she be successful? Who would she bring the claim against? So a few questions wrapped up then. What do you think?

Mathew Reiman: Well, she could bring it against everyone because everyone really in that fact scenario was actually involved in the sexual harassment.

Andrew Douglas: Including a supervisor.

Mathew Reiman: Exactly, yeah. Yeah, that’s right. Including a supervisor, including the people on the wall. She could name specific people if she wanted. She can absolutely name both businesses, even though only one might technically be her intention.

Andrew Douglas: Well, she could also go under discrimination and safety law and make it prosecutorial. Okay, let’s go to the next question. Could she seek compensation? And if she could and evidence was led, she could not work in the same role ever again. And was unlikely to ever work full time again. What sort of general damages compensation would she be entitle to do? What would be her economic loss? Could she be compensated for it? I just say this. This is when you look at the sexual harassment cases that are coming through the HR, see at the moment, and in Victoria, it’s $150 to $2,000, general damages. Which is just for loss amenity.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: But her economic loss will be the difference, taken out to the age of her working lot, probably 65 and reduced by about 30%.

Mathew Reiman: Yep.

Andrew Douglas: Of the difference between what she can now do and what she didn’t. We’re talking, one and a half million dollars.

Mathew Reiman: It’s getting big.

Andrew Douglas: So I want you to understand, this is without doubt the most difficult changes there.

Mathew Reiman: It’s the sleeper change.

Andrew Douglas: It is the sleeper change.

Mathew Reiman: No one’s talking about it. And it’s fascinating cause that accessibility to the court action something that employees did not have before.

Andrew Douglas: Now we’ve got to wrap it up, Matt?

Mathew Reiman: We do.

Andrew Douglas: We’ve gone over half an hour cause we didn’t-

Mathew Reiman: Oh, I think, I could see right into the corner. We’re just over 30 seconds, over half an hour.

Andrew Douglas: Okay, we’re hitting off next week. You’re going to get a lot on safety. Okay. We’ve got director’s duties on safety now. Put up your hands. Say hello.

Mathew Reiman: Yes.

Andrew Douglas: Say thanks. And we’re so sorry about last week.

Mathew Reiman: But please react to all those things.

Andrew Douglas: See you later.

Mathew Reiman: Bye everyone.

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