Andrew Douglas:  Nina, this is our main topic.

Nina Hoang: Mm-hmm.

Andrew Douglas: And you can tell I’m starting to become a bit frustrated with the tentacles of the safety regulator and the unions inveigling themselves into jurisdictions they just don’t belong in and-

Nina Hoang: Yeah.

Andrew Douglas: The obvious one is the universities and restructures, isn’t it?

Nina Hoang: Yeah, I am surprised at the speed that this is happening. Because I mean, so far it’s happened… Well, this is another New South Wales one.

Andrew Douglas: Three. Yeah.

Nina Hoang: So, there’s two New South Wales, one in ACT, and they’re using either the regulator or HSRs.

Andrew Douglas: And a combination with the regulator.

Nina Hoang: Yeah, to shut down restructure processes.

Andrew Douglas: And within universities. So, if we look at it. So, it’s Macquarie Sydney Institute and the ANU is the shocker.

Nina Hoang: Well, yeah. That was the… But that ones gone.

Andrew Douglas: It’s gone.

Nina Hoang: That was only like a week.

Andrew Douglas: Yeah, I know. But it was-

Nina Hoang: No, no. Prohibition was the University of Technology, Sydney. That was the first one.

Andrew Douglas: Yeah. Yeah.

Nina Hoang: And ANU was just a cease work order. That was for like a week.

Andrew Douglas: Yeah. So, if I just stop for a second. In every jurisdiction, a health and safety representative has the capacity to direct the cessation of work.

Nina Hoang: Yeah.

Andrew Douglas: They also, in most jurisdictions, can issue what’s called a provisional improvement notice.

Nina Hoang: Yeah.

Andrew Douglas: Which requires it. Both of those things require considerable consultation. And of course, an inspector from a safety regulator can come and do improvement notices, discovery of documents, all sorts of things.

Nina Hoang: Yeah.

Andrew Douglas: And prohibition notices. But restructuring has been part of 30 years of discussion in awards for major change, a redundancy clause. They’re in every single award. And there has been an enormous discussion about what it looks like. And that is, there is a three-step stage, which is a town hall stage where a definite decision has been made.

Nina Hoang: Mm.

Andrew Douglas: And you discuss what you intend to do and look and agitate how you can help and assist people to mitigate or avoid the impact upon them.

Nina Hoang: Yeah.

Andrew Douglas: You then, in the day or two afterwards, in individual meetings where you look at the core capacities of people, determine who would be selected. And that can be by them putting their hand up, or it can be forced depending on the nature of the circumstances. And then you proceed to terminate.

Nina Hoang: Yeah.

Andrew Douglas: Now, that’s the law.

Nina Hoang: Yeah.

Andrew Douglas: The law is uncomplicated. The methods of consultation are clear. They’ve been fought over in case after case. And what we’re seeing in these three cases is an elevation of the obligation of consultation by the safety regulators and HSR, which is beyond what is required under the award.

Nina Hoang: Yeah. But I think like the problem is, right, these, especially in the ANU case, there was evidence of substantial harm that had been caused to staff. ‘Cause I think there were 10 individuals who had expressed like suicidal ideation and stuff like that.

Andrew Douglas: According the HSRs.

Nina Hoang: No, but they had like provided evidence of that. But what, like, if we come down to what psychological hazard it is, it’s an all around change of management, right?

Andrew Douglas: Yeah.

Nina Hoang: Which requires specific details of what the change is, that you’re consulting people, if you’re keeping them in the loop. If a regulator comes to you, a safety regulator comes to you and says, “I have concerns, you’re not complying with this.” I think if you can prove that you’re doing the steps, well, what can they do? They can’t issue the notice then.

Andrew Douglas: No, no, but I agree with you. If that’s what the safety regulator did, I’d be there, sitting right next to you going, “Great.” But the HSRs are careless as to that.

Nina Hoang: Yeah, but I think the HSR one was just the ANU and there was quite a significant level of harm.

Andrew Douglas: Well, according to them. And the answer is that the management of change is required under the award is one which has been contemplated, understood, and is reasonable. And if people, as a result of that, go, “Oh, this is affecting me.” That’s what change does. Does that make sense?

Nina Hoang: Yeah. Yeah. No, I’m totally with you there. I don’t think people, like everyone is going to be harmed to an extent of the idea that they might lose their job.

Andrew Douglas: So, let me go to the Macquarie. They’ve got that the people, a definite decision has been made under an award, and yes, the regulator has come in and said that everyone must contribute to the decision made. What absolute bullshit is that?

Nina Hoang: Okay. They did not say that. They said, “We’ve issued an improvement notice. And you need to prove that you’ve consulted with people and that you’ve considered their views,” which is-

Andrew Douglas: “Must also allow staff to contribute to decision-making process.”

Nina Hoang: But those are quotes from the union.

Andrew Douglas: Yeah. I understand.

Nina Hoang: That’s what the union has said, interpreted it. But I guess what I’m saying is, I agree. I think they shouldn’t be in this area, but I don’t necessarily think that if you are complying with the employment law of obligations in terms of consultation, ’cause all of those things that you outlined, I think align with change management.

Andrew Douglas: Yeah.

Nina Hoang: I think if you can prove that, a regulator would not be able to issue these notices and you’d have rights to appeal them.

Andrew Douglas: What about the cessation of works? Where they’ve directed people, acted unlawfully, and told people to cease work. How could that possibly be relevant to-

Nina Hoang: Well, because they were saying these people would need to cease work because it’s causing them harm for that week. What I didn’t agree with is that they extended it to people who weren’t part of that.

Andrew Douglas: That’s right.

Nina Hoang: That should have been appealed.

Andrew Douglas: Yeah. I, look-

Nina Hoang: But that, I guess, it was only for a week, so they just let it go.

Andrew Douglas: Can I just say, I’m just agitating this ’cause Nina’s right. Okay? I want you to show what happens when a regulator gets involved in area where they don’t belong.

Nina Hoang: Yeah.

Andrew Douglas: But the answer is we’re not going to stop that.

Nina Hoang: No. ‘Cause they’re starting to use this.

Andrew Douglas: They’re starting to use it.

Nina Hoang: And unions will continue to use this.

Andrew Douglas: Yeah. And it shows where psychological hazards is going.

Nina Hoang: Mm.

Andrew Douglas: And it is an unruly horse.

Nina Hoang: Yeah.

Andrew Douglas: It’s galloping in all different directions and going in places, we don’t know, in the maturity of that process, where we’ll end up.

Nina Hoang: No.

Andrew Douglas: What we do know is, comply meticulously with award, do consultation.

Nina Hoang: Yeah.

Andrew Douglas: And your restructure may be attacked, but it’ll be safe.

Nina Hoang: Yeah. I guess it’s a warning to employees that sometimes consultation is treated as a perfunctory thing, which is not going to fly now.

Andrew Douglas: That’s a great word. Perfunctory.

Nina Hoang: Well, it’s a quote. It’s like a precedent case.

Andrew Douglas: I know, I know.

Nina Hoang: Yeah.

Andrew Douglas: I was teasing you, I was.

Nina Hoang: Yeah. But at the end of the day, like I said to you, I don’t actually think this is going to change the outcome. Like I think, yes, unions, HSRs, regulators can use this all they want. It doesn’t stop people from being made redundant. It only delays the process. And for unis, in particular, who are trying to recover millions of dollars, the longer this goes on, the more cuts that they’ll have to make. So, it’s not the great silver bullet that people think it is.

Andrew Douglas: No, but I guess my issue with it is, and it’s been my problem since HSRs were given the powers they were, is that it is industrialising safety.

Nina Hoang: Yeah.

Andrew Douglas: And it is the last bastion of union power. So, you know, the amount of times we’ve seen unions with rights of entries on psychological hazards, which are total-

Nina Hoang: Yeah.

Andrew Douglas: A total crock.

Nina Hoang: Yeah.

Andrew Douglas: But it is a method of gaining membership.

Nina Hoang: Yeah.

Andrew Douglas: And so what, this is not a political issue, but what the labour governments have done by, they’ve found a tool by which they empower unions to have relevance.

Nina Hoang: Yeah.

Andrew Douglas: And the codes and regulations throughout Australia empower unions to have a relevance that they don’t belong in.

Nina Hoang: Yeah.

Andrew Douglas: And certainly the safety regulator doesn’t belong. But that’s where we are.

Nina Hoang: Yeah. But I guess my point is you don’t need to be scared about it. If you’re doing all the right things, then be confident that you can dispute this.

Andrew Douglas: Yeah.

Nina Hoang: Because you are compliant with the law.

Andrew Douglas: We’re going to go on and do the case study. We’ve had a slight technical malfunction here. So, can you read it for me please?

Nina Hoang: Yeah. Okay. So, “Mannington Girls Grammar School, MGGS, was an elite selective school in the northern suburbs of Sydney. It had 2,320 students across all grades, including preschool, employed 274 people in non-teaching roles. The principal of MGGS, Margot Bennett had been engaged in lengthy discussions with School Yard Proprietary Limited, SY, a grounds and infrastructure maintenance company. Several schools in Sydney’s inner north had outsourced all of their maintenance to SY.

Two of those schools were involved in lengthy disputes with the IEU over Parts 7 and 8 of the Educational Services School’s General Staff Award. Margot was aware of the risks. A transition to SY would involve the retrenchment of over 110 employees with an average service of seven and a half years and an average age of 55. Margot engaged Bevan Bottom Waite.” God, that’s a terrible name. “An IR consultant to assist.”

Andrew Douglas: By the way, that’s one word. I think my AI has attacked Mr. Bottomwaite. So, I’m sorry, Mr. Bottomwaite.

Nina Hoang: “He suggested an overnight process starting with a town hall meeting, followed by individual meetings and an announcement the following day. This approach was attractive to Margot. She had the school council vote on the process on the 2nd of June. And after more than a month of planning, held the town hall meeting. Brian Frith, the HSR in the Grounds Department, along with all other HSRs, issued a request for documents under section 65,” of the OHS Act. “Requested to be present at any interviews with staff from designated work groups, and issued a notice to stop work under section 85 when Margot refused to meet with them.

SafeWork attended later that afternoon and issued an improvement notice that effectively demanded detailed consultation, the provision of all documents relating to how, why, and when the decision was made. And an undertaking to halt the retrenchment process until all the conditions of the notice were met. The process required by SafeWork was significantly more onerous in the requirements of Parts 7 and 8 of the Award.

Andrew Douglas: Part 7 and 8, just to say, is major change in redundancy provisions.

Nina Hoang: “Two days after SafeWork’s intervention, Byron was dismissed for failing to consult before requiring workers to cease work, in breach of the WHS Act.

Andrew Douglas: Well, there you go. So, the first question is-

Nina Hoang: “Byron, who was the HS, was dismissed for failing to consult.” Oh, consult with the employer!

Andrew Douglas: That’s right.

Nina Hoang: Yes. Okay. I was like… I’m so confused. Right. That makes a lot of sense.

Andrew Douglas: No, no. You’re allowed to be confused. I like it when confusion rains. Okay. So, the first question is, how should the school have undertaken the restructure? Can I just say, the amount of industrial consultants who think you can fast-track-

Nina Hoang: Yeah.

Andrew Douglas: Restructures, it keeps us busy all year round. So, the short answer is, the first question is, you must act after a definite decision is made.

Nina Hoang: Yeah.

Andrew Douglas: Most people have made that definite decision months and months ago and then start building a strategy.

Nina Hoang: Yeah.

Andrew Douglas: That’s a breach of the award.

Nina Hoang: Yeah.

Andrew Douglas: Second, when you’ve made that definite decision, your obligation is then to immediately go to your workforce. That’s the town hall meeting to disclose the nature of the definite decision.

Nina Hoang: But you have to put it in writing first before you have the meeting.

Andrew Douglas: That’s right. And to the representatives as well in the most awards.

Nina Hoang: Yeah.

Andrew Douglas: So, then you have the meeting and then you say, “We will catch up with you individually. We’re going to do a work assessment based on skills and competencies.”

Nina Hoang: Yeah. And sorry, you have to consult with all employees who will be impacted, not just the ones who are going to be made redundant.

Andrew Douglas: Yeah.

Nina Hoang: Yeah.

Andrew Douglas: And then you go through this individual process and then you meet and you look at the competencies after doing the skills matrix. And then you determine, and that means some people put up their hand and say, “I’d like to go,” but you still got to keep them.

Nina Hoang: Yeah.

Andrew Douglas: So, actually the process around has to be very cautious and very candid about what will happen.

Nina Hoang: Yeah. Yeah.

Andrew Douglas: And everyone needs to be informed accurately about what is going to happen and it can’t happen overnight.

Nina Hoang: Yeah. And ’cause you have to consider redeployment options. They have to have time to consider and come back to you so that you can consider their views. That’s how it meets the requirements for genuine consultation.

Andrew Douglas: Yeah. And if you don’t do that, it’s not a genuine redundancy and therefore it is a termination.

Nina Hoang: Yeah. And that’s the biggest reason redundancies fail.

Andrew Douglas: It is.

Nina Hoang: Yeah.

Andrew Douglas: So, that’s the way they should have done. Could SafeWorks improvement notice be challenged? The answer is, in every jurisdiction, you can challenge an improvement notice, first, internally and then through an appropriate jurisdictional challenge, in Victoria it would be VCAT, for instance. You can challenge them. Don’t be scared of challenging them.

Nina Hoang: Yeah.

Andrew Douglas: And particularly, we’ve found, and we’ve probably challenged, I dunno how many, quite a lot this year. The internal process is actually quite effective a lot of the time. So, as long as you explain why it is an overstep.

Nina Hoang: Yeah.

Andrew Douglas: Or why it’s beyond the law when you do it.

Nina Hoang: So, in this case, they would’ve had to provide some information as part of the notice.

Andrew Douglas: Yeah.

Nina Hoang: But if they were consistent and persisting for things that were beyond your obligations, then you can certainly challenge, but you can’t just be like, “I’m not going to comply with you at all.”

Andrew Douglas: No, that’s right. Were there any problems with the decision being made over a month before the action was taken? And the answer is-

Nina Hoang: Yes.

Andrew Douglas: Under the award, there is considerable decisions and it wouldn’t be a genuine redundancy.

Nina Hoang: Yeah.

Andrew Douglas: At that stage.

Nina Hoang: ‘Cause it’s soon as is reasonably practical.

Andrew Douglas: Yeah. Which means that people may get greatest notice requirements and things as a result of that delay. But under safety law, it has no impact as to when the decision was made. Could Margot and the school be in trouble for terminating Byron’s employment? The answer is obviously, yes. Because the discrimination provisions that-

Nina Hoang: Against HSRs. Yeah.

Andrew Douglas: Yeah. That exist within all safety legislation. But Byron’s failure to consult is a critical manner because causing a loss to a business by failing to consult is serious misconduct.

Nina Hoang: Mm-hmm.

Andrew Douglas: But the answer is, this remedy should have been exercised at the time of the failure, not days later. ‘Cause what it shows a day later is you are not doing it for a genuine reason. You are doing it, basically, out of spite. So, if he did it at the time, you’d bring him and the union organiser in and say, “Revoke this immediately. It’s utterly inappropriate. You failed to consult.” They’d say, “No.” And you’d go off to a dispute hearing immediately in the Fair Work Commission. And you’d put Byron on notice that pending the termination of that, he may lose his job. So, that’s where it is. I think we don’t speak enough about the basics of employment law and redundancy is not simple. And it does require careful documentation and communication. And I think Nina’s comments earlier about management of change are critical. Now, that we have the safety regulator meddling in this space, the design and the documented process of management of change is absolutely critical.

Nina Hoang: Mm.

Andrew Douglas: So, there you go. We’ll see you next week.

Nina Hoang: Yeah. Thank you.

Andrew Douglas: Thank you very much. Cheers.

Nina Hoang: Bye.