Andrew Douglas: Okay.

Nina Hoang: Onto the main topic.

Andrew Douglas: Main topic. Nina, this is really your stuff, but we’ve seen, well, that’s not me trying to get out of it. We’ve seen the first sentencing report come on occupational health and safety with 12 recommendations that have come.

Nina Hoang: Yeah. First time since the the OHS legislation was enacted actually.

Andrew Douglas: Yeah, and these are my observations, then I’ll let you break it out a little bit. There is this weird amalgam that sits in here. Some incredibly good things but other just trash. And so there’s this idea of restorative justice that sits behind it. Can I just say I embrace restorative justice? The idea of having victim impact statements, I think is great. The idea of having conferences and then undertaking some things to try and heal somebody might work in some circumstances, others, but then the whole issue around undertakings is just nonsense. And then you come to the increase in penalties, and that’s,

Nina Hoang: Oh, they’re significant.

Andrew Douglas: And I think they’re sort of deliberately hidden in the back of the document almost, but they are overwhelming. And then there’s some, I think what you and I have been complaining about, reckless endangerment for a long time. I’ll let you talk more about that. But do you want to go through in those sort of areas what the changes they’re suggesting, and what’s likely to happen with it as well?

Nina Hoang: Well I’m not sure about the likely part.

Andrew Douglas: Well, what’s likely to happen with it is it’ll go to government, and everyone will get scared, and it’ll sit there. But it’ll probably be rolled out at exactly the same time as psychological hazards and used as leverage. That’s what’ll happen with it.

Nina Hoang: Well, I think it’s really interesting around the focus on restorative justice. ’cause that seems to be the underlying principle that they’ve really pushed forward when you read the report. And, actually, I would recommend you read the report. It was actually really good in terms of all the statistics and everything. But this focus on restorative justice, including this introduction of a new impact statement. So you would have your victim impact statements, which you normally have anyway, but now, more than that, people who, other employees who work for the organisation who could have been impacted by the risk can file an impact statement. Family members of the victim can as well. And all of this would be considered as part of it as well.

Andrew Douglas: And can I say to you, you know, our experience and we’ve, between us, run hundreds of serious injuries and fatalities, is every time one occurs, there is somebody within the organisation who never comes back to work. So we underestimate the level of impact, or, I don’t think we do, but can be underestimated. You’re inclined to say, “That’s terrible. “That person got injured. Oh, that’s the worst thing. “That person died. That’s shocking.” But there are waves that go out, and, you know, these concentric waves of damage that is done. It changes people’s worlds.

Nina Hoang: Oh, 100%. But I guess what I’m saying is all of this restorative stuff, I think is definitely heading to higher penalties.

Andrew Douglas: Oh, it is.

Nina Hoang: Because, if you’re getting three, four statements each time you’re getting prosecuted, it is obviously going to aggravate

Andrew Douglas: No, no, it is.

Nina Hoang: whatever the sentencing is.

Andrew Douglas: Well, it works two ways, doesn’t it? It works towards higher sentencing and more serious sentencing to draw a line in the sand about what behaviour is accepted or not. And if we think about bullying and sexual harassment, you can see how it’s going to work for this is be devastating, but, secondly, it’s also driving you back towards the non-prosecutorial pathway of trying to get resolution to stop the hurt.

Nina Hoang: Yeah. Well actually that links to the second recommendation which is all about restorative justice conferences. So they want to have conferences between the offenders and the victims pre-sentencing and hopefully to work through some outcomes, and, like you said, Andrew, they’ve done this in criminal jurisdictions before, and, depending on the outcome, that could be a consideration for the sentencing as well.

Andrew Douglas: And it drives behaviour before then. So people can’t just put their lipstick in and come and be nice. They’ve actually got to have shown the stuff we train people on to actually connect with the family immediately, make sure you’re there to, so that the person when they come through the room is actually seeing a person they care about and understands it. But I just put this now ’cause as we go to the next topic of undertakings, this is already, time is drifting. Most prosecutions take at least two years till they get to court. That’s two years in which somebody is hurting as well. So, great idea. The issue is how do we compress this? And unfortunately the next recommendations draw it out further.

Nina Hoang: Yeah. The big thing that they seem to focus on is this idea of health and safety undertakings which I hadn’t heard about before because we’re used to, you know, fines. We’re used to imprisonment. We’re used to enforceable undertakings. But health and safety undertakings are something else entirely. And they’ve always existed. It’s just, they’re super underutilised. Rather than making an arrangement with WorkSafe, it’s actually a court-appointed undertaking. And the reason why it’s not utilised very much at the moment is because you cannot, the court cannot force a employer to be subject to it. They have to opt in. And no employer is because it’s extremely expensive and onerous. But they are pushing for it to be more common and the preferred sentencing options.

Andrew Douglas: So there’s three options really, isn’t there? There is undertaking, enforceable undertaking, plea, or finding of guilt. Now let’s start. Finding of guilt is a precise and quick method of getting to something without a lot of costs and being tested against what is reasonably practicable if that’s the test. So you’re only, you can contest back to what is reasonably practicable. There is no higher obligation cast upon you, and the cost and outcome is less than step two enforceable undertaking where there are huge costs. The nature of the enforceable undertaking invariably goes beyond reasonable practicability, and, in doing so, creates liability for officers which is why, once in a blue moon, we do one. But once that officer signs an enforceable undertaking with a threshold test that is too high, ’cause WorkSafe won’t go low, then the inevitable incident that occurs afterwards points a finger at that officer, and you’re off to reckless endangerment land with the officer. Undertakings-

Nina Hoang: Are very similar.

Andrew Douglas: Are very similar. They’re just looser and more dangerous because the courts told you, “You’ve got to do this for a couple of years.”

Nina Hoang: And if you do anything wrong. It doesn’t have to be related to that. It’s essentially a commitment that you will not breach OHS in any way.

Andrew Douglas: So just imagine you’re there for a forklift, you know, traffic-style accident, management of traffic accident. Say you go, “All right. “Yeah, well you do use four forklifts.” “No, nothing’s going to happen for two years.” “But we also work at heights.” “No, nothing’s going to happen there.”

Nina Hoang: Yeah.

Andrew Douglas: So, I’m in the construction industry. Would I, in my right mind, give an undertaking, knowing that the people I employ are likely to breach rules that I put in place. And so the likelihood of incident, not injury, the likelihood of incident is highly likely. Why would I give an undertaking? So there’s a level of fantasy in all of this which doesn’t connect with what the real world is.

Nina Hoang: Yeah, I don’t know if it’s going to be super practical, but it is probably one of their bigger focuses.

Andrew Douglas: No, and it’s part of the restorative drive. And that’s also reducing the cost of justice, you know, freeing up magistrates. It’s doing a whole lot of stuff. But the answer is, if they just go straight to plea, it frees up magistrates too.

Nina Hoang: Yeah. Crazy.

Andrew Douglas: That’s mine.

Nina Hoang: Just like finally quickly, increase in maximum penalties to $10 million in Victoria for primary duty breaches. And that will bring us in line with a lot of the other jurisdictions. And it’s essentially, it’s supposed to be a deterrent. I think the biggest, most interesting change is around reckless endangerment where they agree that it’s just not used very well because the threshold is so high. It’s easier to prosecute under industrial manslaughter. So they’re proposing that it can only be charged against individuals not against police abuse.

Andrew Douglas: And we both agree on this. This is something we’ve been saying. Every time we get on here, we say it’s crazy. It’s easier to prosecute industrial manslaughter than reck because of the subjective element in it. Why have they got it? But for something where you can put someone in jail as an individual, yes, threshold tests should be a little bit higher.

Nina Hoang: Yeah, I agree. And it’s going to be 10 years imprisonment.

Andrew Douglas: Yeah. So, you know, the penalty stuff. The other thing is there is a direction that any penalty goes to the coffers.

Nina Hoang: Oh sorry, yes, to WorkSafe. And also they’re trying to address phoenixing and stuff, so directors who repeatedly engage in OHS breaches will get issued with notices, so they’ll be personally liable.

Andrew Douglas: Yeah, which is a nice one. But the one about directing it to the coffers goes back to the old New South Wales, the award at the end, which would take it to WorkSafe and WorkSafe in New South Wales, under the positive duty legislation about 10 years ago, were actually in profit. I think-

Nina Hoang: I think WorkSafe here is definitely not in profit.

Andrew Douglas: But I guess I’d just be wary of what’s going on here ’cause, once again, we’re getting an increase of penalties. We’ve got a WorkCover scheme that’s broke. And I keep seeing the government putting out its hand to grab money back. And that’s not where it should. Sure, a certain amount should go towards them. I can understand that. But the whole amount? Wouldn’t it be better to say it’s the injured worker to do whatever or to actually aid the prevention of forklift injuries? Why would it go to WorkSafe who have almost zero educative role?

Nina Hoang: I think, though, the current law, has it go, it’s just something about it not being clear enough or something. Yeah, it’s a bit weird.

Andrew Douglas: It is a bit weird. Anyway.

Nina Hoang: But, yeah, definitely, well it’ll be interesting to see which ones they implement, and we’ll keep you updated.

Andrew Douglas: And, look, middle of next week we’ll have “Workplace Watch,” which deals with psychological hazards and this issue where we really get into some depth with it. So watch out for that. We’ll send it out to you. Let’s go to the case study.

Nina Hoang: Alright. So, “Jean was worried. “She had been the principal for three years “at Gatherings Grammar, a suburban private school.” “Gatherings had around 1,200 students, “ranging from 4-year-old Kindergarten through to VCE. “It had been a rough ride modernising the school. “The board was, at times, resistant to any change “that impacted a coterie.”

Andrew Douglas: Coterie.

Nina Hoang: “coterie”

Andrew Douglas: I just put that in for you again.

Nina Hoang: “of professionals in the parent group, or their children, “who were closely aligned with the old guard of teachers “and continued to espouse the three R’s, “dismissing more modern concepts of well-being. “This also created an inner group “whose children were feted” “and protected,”

Andrew Douglas: Feted.

Nina Hoang: “feted and protected,”

Andrew Douglas: Second word.

Nina Hoang: “while everyone else was treated less generously.” We have now records of you bullying me. “Jean had to deal with Conrad Taylor, “a 17-year-old boy whose parents owned “the local dental clinic. “They were old grammarians “and well-connected with the old crew of teachers. “Since year 10, Conrad had terrorised “the vulnerable students in his class “and, more recently, had threatened “and intimidated Marjorie Dean, the year 12 English teacher. “Conrad was on a football scholarship. “He was strong, athletic, and fierce. “Ms. Dean felt intimidated and scared. “She had complained to Jean, “and a meeting was facilitated between the parents, “Conrad, Jean, and Ms. Dean. “Mr. Taylor, Conrad’s father verbally abused Conrad “during the meeting, “then turned his eye on Ms. Dean, calling her weak.

“In the end, it was agreed “that a behavioural programme would be developed “in collaboration with the school psychologist, “Ms. Dean, and Conrad. “The plan was agreed upon and signed off by the parents, “but the behaviour continued. “Jean had threatened to suspend Conrad, “and shortly after, she received a lawyer’s letter “suggesting she was in breach of the admission contract “and the Education and Training Reform Act. “The letter claimed she was violating safety laws “by making the school unsafe for Conrad, “who, according to the letter, “was being bullied by the school. “Jean was stuck. “The Chair of the Board had approached her “and asked her to be circumspect “in dealing with the Taylors. “She knew of three children who were terrified of Conrad, “two of whom were exhibiting signs of stress and anxiety, “struggling to even make it to school. “She felt it was dangerous “to allow Conrad to remain at the school.”

Andrew Douglas: There you go.

Nina Hoang: Woo! That was a long one.

Andrew Douglas: It was, yeah. It’s one of those late night ones for me. Okay. Questions. Should Jean have acted earlier under Child Safety Legislation?

Nina Hoang: Yeah, well, if it had been happening since Year 10, I think Jean is in trouble. Like, they’re supposed to notify within three days.

Andrew Douglas: I think that you and I deal with this in so many different environments, in health and others, but there is a bit of a threshold before child safety legislation kicks in, and that’s where there is serious risk of harm. And I think here, I’ve deliberately painted the picture as very open, but if any of those kids are suffering any form of psychological injury or the potential of a psychological injury, it’s definitely notifiable.

Nina Hoang: But even before that, like even before you’ve got confirmed evidence, if you’ve got a reasonable suspicion, that is enough to trigger your obligation, and a principal would have to notify, otherwise they’d be in breach under reportable conduct legislation.

Andrew Douglas: Yeah, and that would be things like being aware the child is not wanting to come to school, being aware that the child has had some physiological effect like increased anxiety.

Nina Hoang: Or there’s violence.

Andrew Douglas: Yeah, there’s violence. So, interesting. I did that under safety law, of course, the obligations kick in before child safety. So the moment something creates a psychological hazard, you must intervene.

Nina Hoang: So Jean is two years late.

Andrew Douglas: Two years late and bordering on reckless endangerment to be perfectly honest.

Nina Hoang: I think so!

Andrew Douglas: Yeah, because she’s aware of a high risk-

Nina Hoang: Which is the second question. What are the risks to Jean and the school?

Andrew Douglas: Well, I just said under safety law. I just thought I’d check that in anyway. But it’s all right. So let’s talk about Jean and the school.

Nina Hoang: Well, you were answering the question!

Andrew Douglas: I like to answer questions. That’s what I’m paid for in six-minute units, all right.

Nina Hoang: So reckless endangerment.

Andrew Douglas: Well, let’s start off with primary duties. Is the school in breach of its primary duty for failing to do something? Absolutely.

Nina Hoang: Yes.

Andrew Douglas: Is Jean under-

Nina Hoang: Even though they’re not employees, they’ve got duties to others.

Andrew Douglas: Others. That’s right. So is Jean in breach of her due diligence obligation under Section 144,

Nina Hoang: Yes.

Andrew Douglas: and her personal obligation under Section 25, which is similar-

Nina Hoang: Yes.

Andrew Douglas: Yep. Absolutely. So, as far as liability goes, it’s a really easy run for WorkSafe at this stage. Whichever jurisdiction you’re in, same law applies, accepting, of course, that due diligence is much easier to prove in everywhere else but Victoria, the subjective test. Next question though is, does it reach the reckless endangerment threshold?

Nina Hoang: I think she has been ignoring it because she’s organised for interventions, but it hasn’t really addressed the issue.

Andrew Douglas: And that’s the heart.

Nina Hoang: Or done anything.

Andrew Douglas: That’s the heart of reckless endangerment.

Nina Hoang: Like it’s been insufficient.

Andrew Douglas: She’s aware of it. She’s getting pressure from others not to do stuff. That doesn’t change her liability. It does put the relevant board members at a high level of risk, but it doesn’t change her liability because once you’re aware of the risk, it’s your indifference or carelessness in respect to that risk. So you must take the right action or you trigger it. Now she does have the subjective knowledge which is the hard thing to get over the line in reckless endangerment, and I suspect because of who she is in the school, the school has it as well.

Nina Hoang: Yeah! Yeah.

Andrew Douglas: But there’s no death, so we don’t get to industrial manslaughter.

Nina Hoang: You sounded upset about that.

Andrew Douglas: All right then. Well you give me an announcement to show off about.

Nina Hoang: Would Ms. Dean have a workers compensation claim?

Andrew Douglas: Yes, yes, yes, yes, yes. No reasonable management action. No defence at all. If she does develop a psychological injury.

Nina Hoang: And they continue to expose her to it as well.

Andrew Douglas: Yeah.

Nina Hoang: Yeah. “If Ms. Dean took personal leave “to avoid the impact of Conrad, “despite having made complaints about her own safety, “and the school did not take steps “to make her workplace safe, “could she have a general protections “and discrimination claim? “Could she argue that if they refused to remove Conrad, “she had been constructively dismissed?”

Andrew Douglas: So I thought-

Nina Hoang: God, that was a long question.

Andrew Douglas: I know. It was late at night. But I think it’s a good question. Gee, we’re over 30 minutes today, aren’t we? But, yes, the answer is general protections are alive whether you’re terminated or not. She’s raised a workplace right, and they’ve failed to deal with it, and they’ve actually made her unsafe. So they’ve acted in a manner that makes it. So, tick. She’s raised a protected attribute, and they haven’t made reasonable adjustments. Tick, discrimination. And yes, she can’t come back to school. There is no way around it. So, in a way, she’s been constructively dismissed. I don’t think that case would be successful. I don’t think it’d be run, but it was just an interesting idea I had while I was out there. What’s the last one?

Nina Hoang: That’s it.

Andrew Douglas: That’s it?

Nina Hoang: All right. Thank you.

Andrew Douglas: Are we done now? Cheers! Cheers!

Nina Hoang: Thanks for joining us.

Andrew Douglas: Thumbs up.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Yeah, give us a thumbs up. Bye bye.

Nina Hoang: Bye.