Andrew Douglas: Let’s move on to secure jobs.

This is very hard without Nina here ’cause I’ve got to remember things. She remembers everything, you see, and I’m a bit old, a bit demented. I don’t remember everything.

So let’s talk about the second tranche of secure jobs.

There’s really only three major changes that come through. We are actually going to send out to everybody who watches us a couple of page handout which gives you, in a high level summary, exactly what has happened and gives you a link to all the detail you need. So if you’re bored now, you can switch off. I’m just going to give you a high level detail.

The major changes we see affecting day-to-day life and there are some which just simply won’t impact 99% of people. The first is flexible work and unpaid parental leave. And that is the capacity of someone to request that and be provided with that unless there are any good business reasons not to do it.

What these changes do is put a much greater responsibility on employers to actually document those business reasons. And particularly when you look at employees who are pregnant, who have domestic violence issues, who have caring responsibility, primary caring responsibilities, the Fair Work Commission will have a capacity to intervene and make orders. Now, that didn’t exist before.

And so I guess what I want to say about this is, there’s some really key learning about this, isn’t there? And that is, it’s very common that this request just comes through an operation person who just flogs it off to HR and says, “HR, can you deal with it?” HR doesn’t know the business reasons.

This is now a very deliberate process that needs a consulted process between operations and HR to build a substantive business case if it is going to be rejected. But on every occasion in which a person puts in a request for flexible work or extended parental leave, there must be that consultation that occurs between operations and HR to have a consistent approach. ‘Cause what you can’t have is an uneven system. Why? A psychological hazard. We know that for a fact.

Secondly, it goes straight to the heart of discrimination. And we see, probably over the last 10 years, more claims of discrimination arise around determination or change in work function of a person returning from parental leave or seeking flexibility around parental leave or extension of parental leave. We see a lot of discrimination litigation and adverse action claims in this area more than any other. So the answer here is step back, learn what you need to do and build a deliberate process.

The next issue that is changing is bargaining disputes. Now this provision came in for a very good reason. That is, there was a capacity to terminate an enterprise agreement which has caused enormous ill will, particularly with unions. So you can now get what’s called an intractable bargaining order which will allow the Commission to make a decision based on what is the dispute that exists between the parties. You’ve got to have nine months of intractable dispute, at that stage you can make application to the commission. The Commission will intervene and will give an order, an award as to what your enterprise bargaining will be.

So this is a backend pressure, isn’t it? If you feel you’ve got a good bargaining position, you should build it towards a point which has that as a backdoor for you, where you know what you’re going to get is what you want. And it’s not hard to back unions into a corner where they’re seeking to pursue an agenda item and one that’s not firmly held by their employees. And the longer a bargaining process goes on, the less it is about employees and the more it is about agendas.

But it would be a very bad place to be, to be 10 to 15 months into a bargain and not have a deal. So, the simple rules around enterprise bargaining never changed. Be close to your employees, know what they want, make sure that your communication is better than the union’s and that what you are doing creates both productivity and return to employees and the business. You do that, you don’t have these problems but it’s an analytical piece that needs to be done. And once again, it is a deliberate exercise a year before the enterprise bargaining expires. Now that’s what that is.

The third part is looking at enterprise agreements and what is in enterprise agreements. Can I say the really big issue here is the Better Off Overall Test. It will cease being a line by line Better Off Overall Test and reverts to the global test at what it is, which gives you greater flexibility inside an enterprise agreement where you can craft the conditions to the nature of your work so long as people are better off overall. And that can be tested from time to time by changing work relationships. Okay? So good stuff actually. Really, really good stuff.

The second major change that sits behind it, and it’s not really a major change, it actually aligns with current law is, when will an enterprise agreement be approved by the Fair Work Commission? And what it requires you to do is to show that, in the bargaining process, the people involved are representative of the group of people who will be employed in the business. That not only are they representative but present from the various classifications, that they have been given a proper understanding of what the various arguments are all the way through, that they have an adequate and proper opportunity to listen and understand it.

This is all the cases over the last few years. The problem is the old methods of shoving through Greenfields with your two cousins voting on it have gone, okay?

So the methods we used to use, and I say we ’cause I guess I was part of it 20 years ago, where you would build a group of people, some representatives some not, who would be voting on it. If they don’t form part of that classification group, they cannot be a part of the voting, okay? If they don’t represent truly the nature of the business that’s being carried on, then it will not be an effective vote. And then all the normal rules that existed before, and these have been generated, those rules were generated by the president of the commission. So what we are seeing is a much fairer, more open process. And I think what we’re going to see is no increase in unionism because of it. So the irony here is we’ve seen a decrease in unionism over the last 20 years. Very dramatic decline from about 48% to under 10% in the private sector. None of this is great for unions, okay? People keep saying it is, but it’s actually not. All this is requiring is the same sort of fairness that court decisions have required for a long period of time.

The Better Off Overall Test really helps employees. It’s a great thing ’cause it allows us to re-craft conditions to actually fit a business. So it’s a real benefit. Can I make that clear? This is not something which is pro-union. This is something which gives employers more levers than they’ve had for the last five to 10 years.

Now there’s also a number of different types of enterprise agreements around joint ventures and stuff. I’m not going to spend a lot of time on that. It affects very few of you and if you’re in an environment where you need to do a multi-employment agreement or a joint venture style of agreement, then just talk to us. Process is really simple and there’s opportunities to do it.

Again, it’s not putting a foot through the door for the unions. It’s creating a practical pathway for employers or collections of employers to actually have a predictable and sensible pathway.

So nothing in here should scare you, is my point. None of this is scary at all. All of this is just cleaning up some stuff which really needed to be cleaned up. When we look at flexible work and parental leave, so many cases around this issue, so many different ways of treating people who are primary carers based on whether you liked them, didn’t like them, whether you failed to performance manage them before and you should have, all those sort of issues. Okay?

Now a deliberate process, you must actually structure it, you must build the competence inside and you must deal with it fairly. When you then go on and look at bargaining disputes, that all started with Boeing. Well it was 25 years ago, the Boeing case where they had a dispute that went on for two years? Crazy stuff. Eventually people used what was an arcane method, that sat within both the Fair Work Act and also the Workplace Relations Act, of terminating an enterprise agreement in such circumstances. They had to be drastic circumstances.

And then there was, I think it was Curtin University, it might not have been Curtin, in Western Australia who terminated a really bad case in a whole number of ways. But what it did was galvanise a union’s understanding that by manipulating the people who could vote in that case, overwhelmingly administered people voted against academic staff.

You could change the complete structure of an organisation by deliberately creating a dispute. That’d be a union argument. I think all of us agree that that’s unjust and stupid. That’s a dumb way to go about doing stuff. The way to create change is to get people in line, it’s not to hit ’em with an axe. And that was what was done. So what this provides is a simple mechanism. Why wouldn’t we have a mechanism where the Fair Work Commission then determines the dispute? That’s what it’s all about. Okay?

And the last part around enterprise agreement, Better Off Overall Test, can I just say, wonderful stuff. Rules around bargaining, what’s accepting as agreement, just the clarity about existing court proceedings. So when I hold this up and show it to you, nothing new, nothing new. Just some things that are better for employers. Reduce the level of risk but if you don’t do what I say, dramatically increase your level of this risk.

Why don’t we move on to the problem for today? I don’t normally read this and I’m blind. So let’s go, Sally.

Gladys was an account manager at Glamour Online Shopping, GOS. She worked at the Melbourne office. Her boss, Tom, was located in Geelong. GOS arranged a sales convention at the RACV in Torquay.

Prior to the event, GOS sent out an email reminding people about responsible behaviour, explaining what is work and what is not work.

The phrase in the policy that was circulated read, “At all times you are a representative of GOS when attending conventions. Therefore, the responsible conduct rules around outside of work behaviour apply all times. However, if you leave the convention premises or otherwise undertake activities not contemplated by the convention agenda, you are taken to engage in non-work related activities.”

Gladys and Tom left after post-day one convention drinks and went to the Surf Club for dinner. At the dinner they consumed three bottles of wine, a good amount.

Late in the evening Tom caught up with a friend from Geelong. His name was Travis. Travis was very drunk and obviously formed a crush on Gladys. Over the next two hours he said increasingly sexualized comments and jokes in a flawed attempt to seduce Gladys.

It was obvious, to a sober person, that Travis’s attempts were humiliating and hurtful to Gladys and she did not consent to the commentary. But Tom just laughed along and made some comments himself, not to seduce her but to make her feel good and be part of the joke. He didn’t realise, because he was so drunk, the impact it was having on Gladys and Travis’s intention.

Gladys got up to leave. She spoke harshly to Travis saying, “No more of your sleazy crap, Travis. I’m going.” As she got up to go, Travis tried to get up and cuddle her.

In an instant, Tom realised what was happening and he hit Travis, knocking him to the ground. He was subsequently arrested and charged by police. The assault was reported in The Geelong Advertiser, identifying Tom, his employer and the convention.

Right, the first question was, Gladys put in a workers’ compensation claim, will she be successful?

Nina? No, Nina’s not going to tell us today.

So the answer to that is, it’s unlikely she would be successful for a couple of reasons.

One, it was a significant deviation from the nature of work that was required to be undertaken and from the process of the convention.

Two, because the words in the convention policy that was sent out made it very clear it would not be work if they left or did something which was not part of that agenda. So her claim would fail.

Gladys made a sexual harassment claim, will she be successful? Now here’s the irony, isn’t it? The irony is, she is out with the boss and though it’s not work for the purpose of workers’ compensation, discrimination and harassment law is a very benevolent piece of legislation designed to protect employees.

I think there is little doubt that Gladys’s sexual harassment claim would be successful. That is because she was with the boss, the boss was providing drinks, it was the boss’s mate and he failed to intervene and he had an obligation to intervene and protect her. So I reckon that claim’s got a good chance of getting up.

Now there’s a case called Keenan, which would say, and Keenan was a case where, Keenan Layton, where a guy came along to a Christmas function, got drunk, was pretty offensive for the whole night. After the function was over, he went upstairs and sexually harassed the HR manager. Perhaps the most stupid man in the world.

But he didn’t bring a sexual harassment claim. He was terminated.

Fair Work Act is a benevolent piece of legislation designed to protect workers. It was held to be out of work for the purpose of his claim.

But there is no doubt at all, if the HR manager and Keenan Layton that had brought the claim, she would’ve been successful. Do you see the irony and how they just don’t quite fit together and that’s why this law is so hard.

Tom’s employment was summarily terminated. Will he be able to make a successful unfair dismissal claim?

Well, remember, out of work behaviour, which is Telstra and Rose, looks at, is he able to come back to work? In other words, did he effectively damage his work relationship with those he worked with? No, he could not come back and be a supervisor to Gladys. Under no circumstances at all could he do that. I suspect he’s in real trouble.

Did it affect the reputation of the organisation? Yes. So under at least two of the limbs of Telstra and Rose, and you only need one of them, his outer work behaviour was relevant to the purpose of a termination claim. I don’t think Tom would successfully claim unfair dismissal.

WorkSafe are investigating the sexual harassment of Gladys. Can they prosecute and if so who?

Interesting, isn’t it? So you’d feel that WorkSafe could but the problem is it was not a workplace. And workplace is actually defined under legislation. Now, it’s not very well defined. It’s a very generic definition.

But I think that they would really struggle to actually mount a prosecution, partly because it’s a criminal proceeding and it’ll be read down quite harshly by a court as to what is a workplace. So it’ll be read narrowly.

Secondly, because under no circumstance was this a workplace in the ordinary meaning of the word. And remember when you look at legislative language, unless it has a technical meaning, okay, that’s where cases have given words a meaning over time, you go to the definition. The definition is generic. You then read it given its ordinary and natural meaning.

A workplace is a place that people work at. The Surf Club at Torquay is not a place that people work at. They were not working. There was nothing about their behaviour that suggested they were working.

Therefore, it is not a workplace that WorkSafe could successfully prosecute against. So the answer is WorkSafe could not prosecute.

The psychological hazards that Gladys that was subjected to, couldn’t do it because, not a workplace. Had it been a workplace they could have successfully prosecuted. They could have prosecuted Tom. And possibly, because Tom is part of the leadership, part of the leadership group in the organisation, the organisation as well.

So there you go. Today we’ve got it all.

Let’s have a look at this next slide because I really want you to call us and have a look at this.

We’ve gone to enormous trouble to provide you with the law, the psychological evidence that sits behind it and also the practical methods you can take for each part of it, what you need and how to do it. Along with giving you many of the templates that you need for this. It’s something that Nina and I have spent hours of work.

Please have a go. Take us up on it. We’re really excited about doing it.

Well, let’s come back to where we are now. I’ll be here next week. Hopefully Nina will be here.

Can you give us a thumbs up? And I really did miss Nina and the koala just doesn’t cut it.

See you later guys. Bye-bye.