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Friday Workplace Briefing

Newest Regulator Target – Directors

Andrew and Nina shine a spotlight on the Newest Regulator Target – Directors to unpack what the Regulators and Courts are focusing on, why there are greater risks for Directors today and what Directors should do.

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About the Hosts

Managing Principal - Victoria

Principal Lawyer - Head of Workplace Relations

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Morning, Nina. Whole new format, eh?

Nina Hoang: Morning, Andrew. I know how exciting.

Andrew Douglas: Yeah, we’ve got to tag as we go in and out of the room. And when we do it between days, I have to wear the same black tee shirt, frightening.

Nina Hoang: I know you should smell him, everyone.

Andrew Douglas: But look really exciting day today, cause we’re dealing with a whole range of things. But principally with Nina, we’re dealing with safety. Nina and I have been out across Australia, and we’ll be continuing to do that in the next few weeks, dealing with psychological hazards and the changes around sexual harassment and gender equality.

Nina Hoang: Yeah, lots of things.

Andrew Douglas: That’s been exciting training, hasn’t it? It’s been great response to people. And we’re off doing mock courts now, which is always the end of the year to remind people. But can I just say around the training of gender equality and sexual discrimination, although the legislation is not coming in until next year, this is a good time to be doing it cause we’re running towards Christmas parties.

Nina Hoang: Yeah, and they’re going to expect you to have things in place before, not after.

Andrew Douglas: All right, let’s go over to Matt now for the first part of it, okay?

Nina Hoang: Yeah.

Andrew Douglas: See you soon.

Andrew Douglas: Matt, welcome to the couch.

Mathew Reiman: Oh, thank you so much, Andrew. Teleported here.

Andrew Douglas: Yeah, teleported here.

Mathew Reiman: The magic of TV.

Andrew Douglas: Secure Jobs. They’re at it again. So since we last spoke to you, Secure Jobs has passed the House of Reps.

Mathew Reiman: Passed the House.

Andrew Douglas: With the Pocock Amendments.

Mathew Reiman: The Pocock Amendments, aptly described.

Andrew Douglas: Yeah. Burke managed to move 153 of his own amendments, of his own legislation. Interesting character.

Mathew Reiman: That’s a lot.

Andrew Douglas: Driving the wedge between Lambie and Pocock.

Mathew Reiman: That’s right.

Andrew Douglas: Hoping that Pocock will take the whole package of Secure Jobs through. I think the chances are almost zero of that happening. But that’s a discussion for a later day. We’ll know in about two weeks time.

Mathew Reiman: That’s right.

Andrew Douglas: But Matt, there have been a number of changes, particularly around the multiple employer enterprise agreement. What are they?

Mathew Reiman: Yeah, that’s where we’re seeing most of the changes and probably what we’re going to see carved out, Andrew. But a couple of key ones are six month grace period after your enterprise agreement expires. If you have a single one before you can be roped in, another if you agree with the union before yours expires, then you can’t be roped in. A lot of these changes around really preventing employers from getting roped in. The exclusion of the building and construction industry-

Andrew Douglas: What a great thing that is.

Mathew Reiman: …as a whole. It’s a big plan.

Andrew Douglas: That’s the Secret Amendment. We’re not going to deal with the CFMEU building construction group at all.

Mathew Reiman: No.

Andrew Douglas: But all of this is to build some form of confidence into the fact that you won’t be roped in.

Mathew Reiman: Yeah.

Andrew Douglas: The difficulty is, at every stage it allows the union a new gun to point at your head.

Mathew Reiman: That’s still a problem.

Andrew Douglas: Well you know, we’ll wait for six months.

Mathew Reiman: Yeah.

Andrew Douglas: Or you either agree with us or we rope you in.

Mathew Reiman: Yeah.

Andrew Douglas: It’s not good stuff. And I think Pocock’s going to struggle with it.

Mathew Reiman: I think he will.

Andrew Douglas: Other one was flexible arrangements. Matthew, was there a change there?

Mathew Reiman: There was.

Andrew Douglas: Good change I thought.

Mathew Reiman: Yeah, I think so. Just to clarify that the Fair Work Commission can’t, when they’re using these new powers to order a flexible working arrangement, can’t order an employer to do something that would be otherwise prohibited by an award or an enterprise agreement. So that was one of the big areas of confusion. It’s good to know now that look, they’re not going to apply it differently than the rules you already have.

Andrew Douglas: So now we’re just waiting until the Senate get hold of it. It’s up there with Respect At Work.

Mathew Reiman: Yep.

Andrew Douglas: Respect At Work should get through, I think, without further amendment.

Mathew Reiman: I think so.

Andrew Douglas: There’s strong consensus to go through with it.

Mathew Reiman: Absolutely.

Andrew Douglas: The provisions around protection of women that exist in the secure jobs, I think will flow through.

Nina Hoang: Yep.

Andrew Douglas: So will the contractor provisions, dumb as they are, but I think we’re going to see a few hurdles hit when it comes to multiple employer agreements.

Mathew Reiman: Yeah, agreed Andrew. Yeah, that’s going to be the long-

Andrew Douglas: Let’s jump to the next one, mate.

Mathew Reiman: Mm, let’s do it.

Andrew Douglas: Really interesting. We’ve spent a number of years where people feel that if you can provide someone with suitable or similar alternative employment, then you don’t have to pay the redundancy payment. That’s never been right. Ever since the most recent amendment of the Fair Work Act.

Mathew Reiman: Agreed.

Andrew Douglas: You must apply to the Fair Work Commission. But the Macleod case is an interesting case. It’s really given us some clarity around it, hasn’t it mate?

Mathew Reiman: It has, Andrew. And what it’s really emphasised here is if you want the benefit of this provision to not have to pay the redundancy pay, simply taking passive steps to obtain alternative employment for the employees that you’re making redundant, is no longer really acceptable.

Andrew Douglas: Look at Chandler Macleod, look what they did, and just explain that.

Mathew Reiman: Yeah, that’s right. So a labour hire provider here loses the contract on a particular site. A new provider comes in, gets that contract, and in that process the employer, the original labour hire employer says, oh well look, you know, we’ve got all these employees, you know, maybe you’d like to take them on. The steps that they take aren’t very direct. They sort of notify their employees. Oh look there’s this other employer coming in. You might get a job. They send them another email that’s got a list of the job openings on the other new employer’s website. And there’s some sort of very tenuous phone calls that occur.

Andrew Douglas: But it’s passive isn’t it.

Mathew Reiman: It’s so passive, Andrew. Nothing documented. No promises in writing. Nothing that is of any sort of obligation on the new employer to offer new employment.

Andrew Douglas: And then we get the new test promulgated, which is the procurement test.

Mathew Reiman: The procurement test. Yeah. So you’ve got to be able to demonstrate that you’ve taken active steps and obtained an agreement to procure that work. Not simply enough to say it’s out there, but you as the employer as taking steps with the potential new employer to get work.

Andrew Douglas: So its a tri-parties team.

Mathew Reiman: It is.

Andrew Douglas: It’s not two.

Mathew Reiman: No.

Andrew Douglas: You’ve got to have an agreement between old employer, new employer and employees.

Mathew Reiman: Yes.

Andrew Douglas: And it must be documented and demonstrated that you are the person, old employer that procured that outcome to waive it. So that’s it mate. And I’ll tell you what, interesting times ahead. I’ve got Kim next talking about seamless support.

Mathew Reiman: Yeah, absolutely.

Andrew Douglas: The importance of infrastructure.

Mathew Reiman: Oh, and documentation. Throwing to Kim.

Andrew Douglas: Well you can take that to the bank.

Andrew Douglas: Good day Kim, how are you?

Kim McLagan: Hi Andrew, I’m good.

Andrew Douglas: Well we’ve got some interesting cases today. What we’re going to look at is the importance of infrastructure when we’re dealing with managing injuries. We’re going to look at it in the terms of termination for people who are dishonest about it.

Kim McLagan: Yep.

Andrew Douglas: We’re going to look at it for possibility of claims being brought. But let’s start off with Soans’ case. Kim, you know all about Yarra Trams and Soans. Tell us just two or three of the key facts.

Kim McLagan: Okay, so Tram driver had a stroke at work, had a period of time off work. When he was coming back to work, they had him assessed by a doctor for fitness for duty. But he failed to disclose that he’d had a stroke. Under their legislation or safety standards, anyone who’d had a stroke isn’t fit for work for three months. And he failed to disclose to the doctors that he’d had a stroke. Which meant that they gave a declaration that he was fit for work when he actually wasn’t.

Andrew Douglas: And as a result of that, his employment was terminated.

Kim McLagan: Yeah. Cause he was dishonest. He didn’t make honest disclosure about the nature of his condition. He knew about the safety standards, knew that he was in breach of them. And then when they found out that he’d made a false disclosure to the doctors and they investigated that aspect of it, he wasn’t truthful in the investigation.

Andrew Douglas: Okay, so what I want you to see in all of this is, and let’s set it across from Dziurbas and Mondelez, a very old case, where Mondelez wanted to terminate an old confectioner called Dziurbas. There was no paper infrastructure that identified what was the inherent requirements of the job. And when they went to court, they got the inherent requirements from four different people. They were all different. And what the judge said in the end, finding for Dziurbas is yeah, I don’t doubt this man can’t do the job, but I don’t know if there’s any reasonable adjustments. So a really good juxtaposition. You got a case here where there’s absolute clarity, Soans.

Kim McLagan: Yep.

Andrew Douglas: Person lies out. You’ve got Dziurbas, a guy who wasn’t fit for the work but wins a case costing half a million dollars in legal fees simply because the organisation failed to define what the inherent requirements the job was. And look, that flows into our next case of Borg and Woolworths, doesn’t it. So tell us a little bit about Borg.

Kim McLagan: Oh look, this is just a lady who exaggerated the extent of her incapacity to promote her serious injury application.

Andrew Douglas: So serious injury applications, a Victorian phenomena. And before you can bring a common law claim, you got to prove you have a level of liability.

Kim McLagan: Or disability.

Andrew Douglas: Disability, sorry. Yeah, okay, So she’s lied to get herself over the limit.

Kim McLagan: Yep.

Andrew Douglas: Tell us what happened.

Kim McLagan: Her application got dismissed because the judge was aware that she was exaggerating the level of her disability.

Andrew Douglas: But they found that out because the evidence led, they got some CCTV of her wandering around, which showed her disability described was unlikely. They looked at her social media site and saw she was undertaking activities she said she couldn’t do.

Kim McLagan: Yeah.

Andrew Douglas: And then she had all these overseas trips. And so isn’t this a good warning again? What do you do when you think someone’s wrong? Well the first thing is you go to what is the job description.

Nina Hoang: Yeah.

Andrew Douglas: And you look at the objective evidence of her capacity or his capacity to do it. Now that can be shown. DP World was where everyone gossiped about a bloke on workers’ compensation.

Kim McLagan: Yeah.

Andrew Douglas: Couldn’t do a job. So they pulled in an investigator, the investigator found him working on a car and they terminated him saying he wasn’t fit for the inherent requirements.

Kim McLagan: And they lost.

Andrew Douglas: And they lost because the medical evidence was he wasn’t fit to do his job. And it’s a different issue about the car. He wasn’t fit to do the job. So I want us to come home with this very simple issue that Kim and I keep coming to time and time again. The first place you go is the job description, that must be accurate for the job that’s being done. If you’re worried someone’s not telling the truth, collect the easy to gather evidence to tell you whether it’s gossip or whether there’s support to suggest someone’s being dishonest. Is honesty in any form of legislation is fundamental to the success in that legislation. If you lie about a serious injury, you won’t get up. If you lie in worker’s compensation, it won’t be accepted.

Kim McLagan: Yeah.

Andrew Douglas: If you lie for Fair Work Act, it’s serious misconduct and your employment will be terminated. But if you don’t have the reliable evidence, you can’t do any of it. You’re making it up yourself.

Kim McLagan: That’s right.

Andrew Douglas: Thanks Kim.

Kim McLagan: Thank you.

Andrew Douglas: So let’s get into the new Queensland code that’s come through. So they have both regulations and code in Queensland.

Nina Hoang: Both come into effect. 1st of April.

Andrew Douglas: Can I just say this is typical Queensland stuff? Documentation, documentation, documentation. It is the only code that sets out what controls look like. And those controls are document rich, aren’t they?

Nina Hoang: Yeah, it’s really based about what checklist you can fill out. What like many, many things. All of their case studies are based around documentation, which is going to be quite problematic, Andrew.

Andrew Douglas: Yeah.

Nina Hoang: Because as we know with safety, too much documentation can be a problem because it encourages compliance over looking at the underlying issues and tick box exercises.

Andrew Douglas: And look, this is just, I’m sorry. This is what happens in Queensland. Safety law gets lost in the idea of a documentary safe process. And I think this code is dangerous. I don’t think it’s helpful.

Nina Hoang: Yeah. I think it’s going to ignore really the whole point, which is to monitor people. Just cause you tick off that they’re okay is not going to protect you.

Andrew Douglas: But look, the upside is positive duty is back in there to avoid psychological hazards. So now throughout four states and territories, there are codes or regulations that govern this and impose this obligation to actually prevent psychological hazards. But look, let’s move on, okay. Because we’ve got our next favourite case, which is the Dick Stone case. And this is about an employer who never learns a lesson, isn’t it?

Nina Hoang: Literally, we’ve spoken at length about this case before. So it was a meat processor wholesaler who was having overseas employees work over 50 hours a week. And they said that was reasonable.

Andrew Douglas: With no choice.

Andrew Douglas: Yeah, and look, the court absolutely tore them apart. Despite all of that at the centre of the hearing-.

Andrew Douglas: Let’s say tore them apart under Section 62 because it simply was-

Nina Hoang: Unreasonable.

Andrew Douglas: Unreasonable expectation for people to work, okay.

Nina Hoang: Yeah, and they hadn’t considered the health risk at all. They worked in an area with knives and heavy machinery. So obviously fatigue was a huge risk. But they don’t agree.

Andrew Douglas: So when they found the problem out, what did they do?

Nina Hoang: They gave everyone sheets to fill out whether they wanted to work 38 hours or 50 hours without telling them what the risks were so they could make an informed decision.

Andrew Douglas: And as a result that the court fined them over $90,000.

Nina Hoang: Yeah, it was $93,000.

Andrew Douglas: So can I just say 50 hours work is not an unusual work in our business, it’s not unusual. But understanding the risk that comes with it and being clear to people about how that risk is being managed is what this case is about.

Nina Hoang: Yeah, You need to-

Andrew Douglas: If you don’t do that, I’m afraid it’s all over.

Nina Hoang: Yeah.

Andrew Douglas: So let’s jump to really the meat and potatoes of today, which is looking at the regulators, the safety regulators, target of directors. I think Nina, it’s fair to say that if we take COVID out of it, when the regulators went into hibernation and just dealt with COVID, what we saw since 2018 was 12 to 14 cases of reckless endangerment and one of industrial manslaughter. In the years prior to that in the whole history of safety legislation, only orbit drilling had occurred before.

Nina Hoang: Yeah, it’s a massive increase.

Andrew Douglas: And now we’ve seen this greater focus on the expectations of directors who are not as operational. So all the past cases we’re dealing with are operational directors.

Nina Hoang: Right, officers as well.

Andrew Douglas: Yeah, they’re people who actually manage the business and are deeply involved. And we’re seeing now the focus on those ones are a little more supine and not involved in day to day operations, but ought know the high level risks that are occurring.

Nina Hoang: Yeah.

Andrew Douglas: So if we go back to the old cases, the cases like Carter, which was the woman lifting a car on a forklift. Yeah. We go back to-

Nina Hoang: Like Jackson.

Andrew Douglas: St. Jackson’s the case. We go back to all those cases, there’s been some really significant jail sentences handed out.

Nina Hoang: Yeah.

Andrew Douglas: Even in Brisbane Auto Recyclers, a $3 million fine.

Nina Hoang: Yeah, and 10 months imprisonment.

Andrew Douglas: Yeah, these are significant fines. But the focus now is moving to directors generally. And that’s why we’re talking about today. Because there is a recent case, which is how long ago now? It’s only a few months ago that they’ve started the prosecution in Victoria.

Nina Hoang: Yeah. I think it’s about maybe two months. And we don’t know the company because Work Safe won’t prosecute it. But it’s the first ever manslaughter prosecution against a business in Victoria. And also specifically against the director. Once again involving a forklift. Not surprising, regulators cracking down on heavy machinery.

Andrew Douglas: And that’s the truth. When we look at what has happened over the last four years, heavy machinery, the direction to use it, the system around it, faulty-

Nina Hoang: Supervision.

Andrew Douglas: Yeah, all those things have led to it. So if there is a high level risk in your organisation, if you use trucks, forklifts, and cranes, guaranteed, if you fail to follow the codes that exist around it or the safety and proper safety instructions, you will be prosecuted.

Nina Hoang: Yeah.

Andrew Douglas: But we’re also seeing two new cases that are coming through, not at industrial manslaughter stage, but around psychological hazards. And that is the new attack of regulators.

Nina Hoang: Yeah.

Andrew Douglas: So let’s just talk a little bit about why is that happening?

Nina Hoang: Well, why is it happening now? As opposed before? It’s always been a focus, but I think today regulators are seeing, directors are becoming willfully blind to it. They’re relying on things like insurance to say, look, if something happens, I’m protected. But that’s just not the case.

Andrew Douglas: Yeah, and when we talk about willfully blind, that’s the sort of legal expression that Nina and I bandy about a bit too much actually. But what it means is that directors stay in their lane a bit. They come to their board meeting-

Nina Hoang: Too much.

Andrew Douglas: …they’re not identifying what’s required which is how are you managing the high risk hazards that exist in the organisation.

Nina Hoang: Yeah.

Andrew Douglas: They’re inclined to rely on safety specialists within the organisation to handle it.

Nina Hoang: And not read the safety reports as well. To just do with it’s being dealt with.

Andrew Douglas: And some of those safety reports are absolutely impenetrable. A hundred pages of graphs, which is also nonsense. So the other part that Nina said of course, is insurance is going. In three states it’s gone.

Nina Hoang: Yeah, it’s gone.

Andrew Douglas:It’s illegal to indemnify against it.

Nina Hoang: New South Wales, WA, and Victoria.

Andrew Douglas: And within the next two years it will be illegal throughout all states and territories. So you won’t be able to insure for the penalties. You were never able to insure for reckless endangerment. And you were never obviously able to insure for being locked up. Cause they don’t want to go there for you. So when we look at those things, I guess, let’s look at what you need to do. Cause that’s the big issue for directors. So perhaps I think we’ve got a slide coming up.

Nina Hoang: Yeah, we’ve got slide.

Andrew Douglas: Okay, Nina, this is our system that we talk about. And I think the biggest gap you see, so number one is a plan.

Nina Hoang: Yeah, make sure you have a safety plan. If you don’t have one, then you’ll-

Andrew Douglas: Unless you’ve independent expertise that says the plan deals with the highest levels of risk. I mean, if you’re a director and you’ve got a safety practitioner telling you, have you any confidence that that safety practitioner has the operational skills to give you that information.

Nina Hoang: Yeah.

Andrew Douglas: So on a regular basis, once every couple years at least you must independently bring someone in.

Nina Hoang: To certify it.

Andrew Douglas: Yeah, and say, look, these are the hazards. These are the high level risks. This is the type of control you should be doing.

Nina Hoang: Yeah.

Andrew Douglas: And then put it into a plan and budget the plan and give it resources. Cause that is what reasonably practical requires.

Nina Hoang: Yeah, and actually implement the plan. The amount of times we see people say, yeah, look at my perfectly created plan, but no one’s ever looked at it.

Andrew Douglas: So, there’s no process. We don’t find the policies and procedures of the safe operating procedure to execute. We don’t find-

Nina Hoang: It to be rolled out through the chains.

Andrew Douglas: Normally we actually see the acquisition of capital that’s required. So it stays at an administrative control. So implement the process.

Nina Hoang: I think what you said about budgeting is really correct. A lot of times safety is considered as an afterthought. But you actually need to prove that you are, you know, spending the money to implement all the parts of the plan.

Andrew Douglas: And when Nina and I are doing prosecutions, which we’ve done about five or six to plea this year.

Nina Hoang: Yeah.

Nina Hoang: Every time the evidence we have to demonstrate is, okay, so this was the hazard.

Nina Hoang: Yep.

Andrew Douglas: This is how we identified the risk.

Nina Hoang: We did.

Andrew Douglas: This is the control. This is the resources we put behind it and the plan and process around it.

Nina Hoang: It’s the best way to mitigate any kind of prosecution.

Andrew Douglas: And then of course as a director, unless you’re satisfied you have the plan process, that the staff are competent at delivering it and to do it safely, you are liable.

Nina Hoang: Yeah. They have to actually understand the plan, because they’re the ones on the ground floor. Obviously as a director, you’re not going to be everywhere at once.

Andrew Douglas: Yep.

Nina Hoang: And if you can’t be confident that your staff are competent, then…

Andrew Douglas: So there’s one of your key reports that comes out is a demonstration that people are trained and competent in the plan and process. Without that you have no, no diligence, protection.

Nina Hoang: Please keep records of training. That is something that’s so frustrating because you go through all that effort. If you don’t have that record, how will you remember years from now what you did?

Andrew Douglas: And the people who lead people must know what the plan is. They must know the processes. That’s their toolkit. They must be satisfied that every person is competent in that plan and process. Now do you see how this whole thing integrates into a business plan? Cause this won’t work if the-

Nina Hoang: It should go hand in hand.

Andrew Douglas: …safety plan sits at the side. After that, how do you check it’s happening? How do you do walkthroughs? Do you do inspections as an executive group or as a board? Particularly as a director. Where do you have your monitoring processes that tells you there is integrity?

Nina Hoang: Yeah.

Andrew Douglas: If you don’t have it and it’s not being reported to you, you don’t have a system. And last of all, of course, you must have a reporting system back against the plan that tells you the success, the gaps, the actions that need to be taken.

Nina Hoang: So you can review it. And if it needs to be changed, part of reasonable practicality means you need to change it.

Andrew Douglas: Well that’s it, then isn’t it? If you’re a director-

Nina Hoang: It’s so simple.

Andrew Douglas: If you’re a director, take this plan and test it out in your organisation.

Nina Hoang: Yeah.

Andrew Douglas: That’s our little gift for you today. All right. Okay. Nina, we’ve got the case study. It’s a big one this week. I’m sorry.

Nina Hoang: Yeah, you got carried away.

Andrew Douglas: I did get carried away, it was after midnight. So let’s go, you read.

Nina Hoang: “Vicki worked as a draftsperson in the engineering department of Big Build. She was a qualified engineer but chose to do drafting work because of her home responsibilities with kids and husband. She used the SkyCiv software to document the structural design created by engineers.

Big Build were engaged by large builders and government to develop the engineering infrastructure for large entertainment buildings and shopping centres. They specialised in the structural design for architecturally shaped roofing that was both safe against the worst weather conditions but attractive to look at.

Big Build had undertaken a cost cutting programme since COVID, demanded people return to work and bolstered their engineering team to deal with four new contracts they had successfully tendered for.

In Vicki’s team there were three engineers and two draftspersons. Her counterpart drafter was the wife of the Managing Director. Her name was Sybil.

Vicki lived in Craigieburn, had two young sons, both school aged and a husband who worked afternoon shifts. So she had to be at home on school days for pickups. Her flexible working arrangements had been approved but were not welcomed by her team leader, Jason.

Jason was an equal shareholder with the other eight principal engineers and director. He and his two engineers in his team were working long hours to deliver two of the new projects, but the documentation process was holding them up. Sybil was not highly skilled and precious. Her husband Dale was a difficult man and Jason knew better than to push back on Sybil’s low productivity. Instead, he increasingly relied on Vicki. He liked her, trusted her, and confided in her his frustration with Sybil.

Vicki explained to Jason that her youngest son was starting to develop some behavioural issues and she thought it came from her inaccessibility and stress from work. It was now common for her to work over 55 hours a week. Her base pay under the award was $32 per hour and she was paid $42 per hour. Over a year, the over award payment had previously offset the hours she worked. It assumed an average working week of 45 hours per week.

In June 2022, Jason explained to Vicki he will need her to undertake some of the admin work as they had made all PAs redundant. She said yes, but within days noticed some hair loss, her weight had been plummeting and she felt stressed all the time.

One night when she went to bed, she had what she thought was a heart attack. The ambulance came and she found out it was a panic attack. She saw her treating doctor the next day. She admitted she was losing interest in life and couldn’t see a way out.

She had trouble concentrating and was often tearful when alone. The doctor suggested she take some leave and see a psychiatrist. She did neither but told Jason. Jason said take care of yourself but then detailed the mistakes she’d made and said they can’t afford any more.

As Vicki left work two days later she turned to talk to Sybil. Panic suddenly struck, she lost her balance and fell over the rail of the external stair falling on her head and dying immediately.”

So dark Andrew.

Andrew Douglas: I know, so dark, so dark. But, well I know it’s dark, but it’s hard to tell stories where people die, which aren’t dark isn’t it?

Nina Hoang: Gosh.

Andrew Douglas: So the first question is, “Was the allocation of work and method of Jason’s leadership a psychological hazard?”

Nina Hoang: Yeah. On so many levels.

Andrew Douglas: In so many ways, isn’t it? You know, when you look at it, so leadership’s one part, but the absence of reward.

Nina Hoang: Poor work design. She was over, too much job demands on top of that.

Andrew Douglas: Yeah, and then giving her work, which was beneath her.

Nina Hoang: And not really listening to her when she was saying, I need help.

Andrew Douglas: Yeah.

Nina Hoang: Just kind of dismissing it. Like sometimes managers acknowledge, but then dismiss. That’s also causing harm.

Andrew Douglas: This is the Birkin and Suncorp. Any reasonable person at this stage would’ve gone, wow.

Nina Hoang: There’s a problem here.

Andrew Douglas: There’s a real, real problem here, okay. So yes, there is definitely psychological hazards and it’s filled with those psychological hazards. And at common law, Jason and Dale were on notice that this person had a problem and there was a need to intervene. The next question is, “Jason had spoken directly to Dale immediately after his discussion with Vicki, where she disclosed how unwell she was and said Sybil must take on higher, higher load explaining Vicki’s precarious mental health. Dale had said, Jason needed to sort it out and not waste his time. Could both Jason and Dale be liable for industrial manslaughter?” And now I, I just want to raise this. If Jason wasn’t a director, there’s absolutely no way if he isn’t an officer, that he could be liable for industrial manslaughter. But Jason is a director. Okay. So he is an officer.

Nina Hoang: Oh cause he’s a shareholder.

Andrew Douglas: That’s right. No, no, no, he’s also a director. He’s one of the eight. Now I forgot that when we were chatting in the car on the way in.

Nina Hoang: I thought you had said he was a shareholder.

Andrew Douglas: Yeah, he is that and a director, okay. You got to go back in the proper, gee, I tell you.

Nina Hoang: You’re making up facts as you go along.

Andrew Douglas: No, it’s in there, it’s actually in there. But besides that, and Dale of course he’s a director as well, he’s the managing director.

Nina Hoang: But he hasn’t been negligent with her. Like in this question. He’s raising it directly with Dale. So isn’t that doing something?

Andrew Douglas: Yeah, it’s not enough. Okay. So if we start at reckless endangerment, so let’s build up the The scale.

Nina Hoang: Yeah.

Andrew Douglas: So they’re definitely primary duty liability. Could they be reckless endangerment? They’re aware of a serious risk to health and safety. Yes? Could have caused death or serious injury. Yes. Are they indifferent to it?

Nina Hoang: They’re not reckless indifferent though.

Andrew Douglas: No, no.

Nina Hoang: Just talking about Jason. Dale, definitely. But Jason’s not ignoring it, just based on these questions.

Andrew Douglas: No, that’s the whole problem. In reckless endangerment, taking those acts doesn’t get you out. You have to take the right act. Indifference is failing to act in an appropriate way. So a little bit of acting. A little bit of raising. It’s not enough.

Nina Hoang: A little bit of acting.

Andrew Douglas: Yeah. Okay. So he’s liable for reckless endangerment. The question is-

Nina Hoang: whether he was negligent.

Andrew Douglas: whether Dale and Jason were grossly negligent to a criminal level. And I think it would be hard to be perfectly honest.

Nina Hoang: Yeah, It’s always hard to meet that threshold. For my answer.

Andrew Douglas: So I don’t think that Dale would be, cause I don’t think Dale has the state of knowledge to be that negligent. He’s dismissive and foolish, no doubt about it. He’s recklessly endangered someone, no doubt about it. And Jason is trying. So when you see negligence at this level, that is the deliberate disregard. Probably the part that puts Jason at risk is when she tells him how bad she is, he then starts correcting her mistakes in front of her.

Nina Hoang: Says, I appreciate that, but you’re making these mistakes.

Andrew Douglas: So he’s on the verge, but he wouldn’t be charged. Okay, so let’s have a look at the next question.

Nina Hoang: “Has Big Build got an underpayment issue, and could Dale and Jason be prosecuted along with Big Build?”

Andrew Douglas: Let’s be really clear about this. Unless you’ve got annualised salary under an award, it’s every payroll period is a potential breach.

Nina Hoang: Yeah.

Andrew Douglas: So if you work 42 hours and you’re paid enough to pay 45, on those weeks, there’s no problems. But if every now and again you spike above it-

Nina Hoang: Yeah.

Andrew Douglas: …for that pay period, it is a breach, and you are charged with each individual breach.

Nina Hoang: Yeah.

Andrew Douglas: So that’s the answer to one is there is definitely an underpayment issue. And there is now a gross underpayment issue which breaches the prosecutorial guidelines of the regulators.

Nina Hoang: Yeah.

Andrew Douglas: Because they say if you look over the yearly period and there is an underpayment, you will be prosecuted, okay. And you can’t mitigate and go to mediation to solve it. Their view is now you accept the plea.

Nina Hoang: Yeah.

Andrew Douglas: Or they proceed.

Nina Hoang: And I think both of them actually could be prosecuted as well. Because it’s unlike safety law, it’s not limited to officers.

Andrew Douglas: No, no it’s not.

Nina Hoang: So it just depends on their knowledge. So Jason definitely has knowledge about the excessive hours she’s working, but whether he has direct knowledge of how much she’s getting paid.

Andrew Douglas: And remember these are the 7-Eleven amendments that came to the Fair Work Act to deal with under payments following the 7-Eleven cases of franchises. But let’s be clear about the test, because this is a criminal liability. This is not a quasi criminal liability. This is a criminal liability for wage theft. And that’s how this would be characterised. So the reputational damage to this business would be extraordinarily high for being named as a wage theft person. And remember through the restaurant industry how damaging that was.

Nina Hoang: Yeah.

Andrew Douglas: But the knowledge state is for the managing director a constructive knowledge, because he leads the business. So he cannot escape it. And Jason definitely cannot escape it cause he has specific knowledge. So both of them would be up for very significant penalties for each breach along the way. Not just for the one total breach.

Nina Hoang: But they would round it up under the totality principle, wouldn’t they?

Andrew Douglas: Well they’d use what’s called in criminal law, the totality principle, which is to work out what the total loss is. But the difficulty with this is this is a criminal provision to prevent repeated repetitive loss.

Nina Hoang: Yeah.

Andrew Douglas: So the totality principle would have a limited play in it. So you would find the aggregational number of it would be taken into consideration. These would be very, very significant fines. There would be back payment. And on top of that there’d be interest payments. So there’d be three levels of fines that were involved in this. There’d be the fine itself. There’d be the interest that has to be paid with the back payment. And I suspect there’d be director’s liability responsibilities about their continuation of acting as a director.

Nina Hoang: I think it would also be widespread because so many other people are doing long hours. So probably even higher fines.

Andrew Douglas: We’re going to head off now. Really enjoyed the new structure. And the idea of this is, if there are particular parts of what we’re talking about, request them and we can actually send you out the individual parts.

Nina Hoang: Yeah, we can extract it for you.

Andrew Douglas: We’re really looking forward to it. We’re enjoying this enormously and we love having you with us. See you later, bye bye.

Nina Hoang: Thanks, bye.

Check this next

This week Andrew Douglas and Mathew Reiman discuss the impact of the High Court ruling that delivered a huge blow to Host indemnities for recovery actions; as well as giving you a wrap up of some important news and developments. To view the full episode and catch up with the week’s latest news and developments…