Tom Daly: So then the main topic, we’re going to talk a little bit more about these three psychological hazards that have been added to the government’s Code of Conduct.

Andrew Douglas: The Code of conduct. And also to the general discussion around what are and what are not psychological hazards. At the moment, there’s 14 psychological hazards. Four of them are egregious, they’re trauma, exposure to violence, aggression, sexual harassment and bullying. Okay, they’re significant wrongs. And the other 10 are design and leadership-based issues. But the new three of fatigue, intrusive surveillance and job insecurity, ones which have been agitated by the unions for a long time and quite properly so. When we look at fatigue, fatigue is not just, “I’m tired because I’ve been working really hard on a spade for the last 10 hours.” But it’s important.

It’s not just “I’m driving a track for 10 hours”, which there’s a whole lot of legislation around. It can be emotional, it can be psychological, it can be a combination of any one of those three. But the issue is the need to assess the level of risk that sits around a known hazard and to develop a plan which prevents that from actually impacting the person and making them unsafe. Now, in Victoria, when we look at the new code and regulations, which will come out in December, this is not one of the recognised hazards at the moment, but I’m sure by the time it does come out, it will be. It certainly won’t be one of the hazards that requires a prevention plan, of which there are six. But what we’ve been saying to everyone, which you and I and all our team been saying is prevention plans are a great idea.

If you’re going to do it for one group, such as sexual harassment, why do it across the whole lot? ‘Cause it assesses what is the nature of the hazard? What is the risk? What are the proper controls? And as a process going forward, I’m just adding that bit in there. But for fatigue, it is a huge issue in every industry. In ours, you know, when we have really big fights on, we can be working all hours of the day and night. Trucking industry, construction industry, all types of professional service industry, retail, hospitality, nursing. It’s a big issue, isn’t it? Particularly, we have rotating shifts. So there needs to be planning, awareness and understanding. Intrusive surveillance has really popped up over the last….

Tom Daly: So sorry, just to get back on the fatigue. For something like a night shift construction worker, would his or her employer have to pay particular attention to that knowing that maybe the hours of work are…

Andrew Douglas: Yeah. Look, I think where there is a higher risk of exposure, you should be saying hello to your workers when you come on seeing them, you should certainly be looking for signs of fatigue. So if you’re seeing someone yawning, they’re a bit disorientated. They look tired. It’s common for me, when I’m dealing with parents in our own business of young children, that I’ll check in on them from time to time because you do get fatigued with young kids. You’re up all night with them. So I’ll say to those people, “Give us a heads up if you’re struggling, do you want to work from home when that occurs? Do you need a bit of a sleep?” So there are things that tell you that fatigue is more likely to be real, but you need to keep looking for the symptoms of it.

Tom Daly: Yeah. Cool.

Andrew Douglas: If we can talk about surveillance. Surveillance really become a big issue around the time you get a GPS work around about 10 to 15 years ago. The unions have been really strong about the misuse of GPS around misconduct. And the fair work commissioner said, “Look, GPS isn’t… it’s mainly meant for safety related issues.” So you see it in the truck industry a lot. But it can be used when you’re concerned about behaviour and conduct as well. But where it becomes intrusive, where it starts to affect the way you live, where the GPSs, when you’re at home, it’s tracing everything you do, it becomes a form of micromanagement, then it becomes a real hazard. When you constantly thinking about being surveilled. Since COVID, we’ve seen it in a whole lot of methods of surveilling people working from home, whether it’s a camera on them all the time, that’s always live, whether it’s keyboards, I think this is a really good thing.

Tom Daly: Horrible.

Andrew Douglas: Yeah, I think it’s horrible. And I think that often the measures that are used to do it don’t seem to represent what working from home is designed to do, which is to give people outcome expectations rather than presence expectations. In other words, when people work from home, you have an expectation of output. You do realise that from time to time the person will go out and sit in the kitchen, read a bit of a newspaper for 10 minutes and come back. But you’re paying people for output. It’s a different way of thinking.

And I guess the last part, which is a burgeoning part of our whole economy, which is insecure work, which is contracting work, casual work, gig work, we’ve seen, so for instance, when I started work a long time ago, Tom, Casualization of labour was under 10% and independent contractors was 6% of total labour force. We are now seeing independent contractor work up to around about 30%. Casualization of, don’t know what the figure is now but it’s extraordinarily high. And we’ve seen the emergence of gig work, which is dramatically changing the nature of work. So what this hazard is saying is, when someone does have insecure work, what are the protective factors you as leaders will introduce to mitigate the impact of that hazard?

Tom Daly: We were talking about the example of, I asked what would a company like Uber or DoorDash or someone like that whose workers are in… They’re inherently insecure jobs.

Andrew Douglas: Yeah, so one of the things is to ensure that they don’t appoint too many people so the work becomes insecure and thin and irregular. Which is one of the risks that Uber did early on in Australia where they overwhelmed the amount of Uber people and people weren’t able to maintain the capital value of their vehicle and the monies that were being earned. That changed and they’ve shown.

The other part is to ensure that people do feel safe, they do feel connected. There are measurements that they can see around their success, that there is a regularity of shifts and things provided, which allows people to have secure money to know that they are going to make it through. So they’re the protective process that sit around good leadership, knowledge and clarity and they take away that hazard. But look, I think it’s a fascinating area and we are going to see this attack on the gig economy because it’s designed by the unions to deal with the gig economy. Tom, can I take you over the case study and I’ll let you read it, mate.

Tom Daly: Of course

Andrew Douglas: Should be quite new to you.

Tom Daly: Yeah. So hard. Gaynor works from home as a sales lead for a major insurance and investment fund business. Although she’s employed under an award, she has signed an individual flexibility agreement, which assumes 45 hours of work per week. She’s paid well above the award rate and the agreement compensates her regardless of the time of day or night she works. In reality, her average working hours are around 52 hours per week.

Gaynor has three children, age six, nine, and 12, one of whom has a significant learning disability. She recently separated from her husband who has been acting in an aggressive and destructive manner. This behaviour has included sending aggressive texts to both her work and personal phones from various numbers, sending explicit email accusing her of infidelity and calling her abusive names, as well as visiting her home to scream abuse through her windows and issue threats. Despite a restraining order being in place, he has continued this behaviour.

Her employment is classified as casual and her attempts to convert to a permanent role have resulted in diminished and irregular work, highlighting the precarious nature of her employment. Although her workload eventually resumed, it remained erratic, urgent and complex. Her manager, Ben, has frequently reminded her how easily her role could be made redundant and that she must work hard to retain it.

Since the onset of COVID-19, the business implemented keystroke monitoring, even though much of Gaynor’s work involves designing client solutions rather than constant typing. This surveillance has resulted in her receiving two formal warnings over the past two months, along with being placed on a performance improvement plan.

As a result of her chaotic workload and ongoing personal difficulties, Gaynor has developed anxiety, insomnia, and skin rashes. She has informed her employer of these issues, requested a referral to the employee assistance programme for stress and disclosed to Ben the significant impact of both personal and work-related stresses on her mental health. Ben advised her to enforce the restraining order. I assume that’s against her partner?

Andrew Douglas: Yeah.

Tom Daly: Yeah, in the past two…

Andrew Douglas: Not against Ben.

Tom Daly: In the past two weeks, Gaynor has made three errors. First she fell asleep and missed an important teams meeting with a client. Second, she made a calculation error regarding a client’s premium. Third, she failed to meet the keystroke threshold, which implicitly suggested and was explicitly stated by Ben that she had incorrectly claimed work hours. As a result, the business has issued her a show cause notice and scheduled a disciplinary meeting.

Andrew Douglas: All right, an unsavoury story really. But the first question is, does she have a good workers’ compensation claim? And the answer is for so many reasons. If we take away the performance management process, which is flawed, so in workers’ compensation land, which doesn’t have a legal basis for a lot of what it does, it would say if you’re going to tell somebody you want to have a meeting with them about show cause you would go to them, ensure they had a support person present and that they had adequate support.

Didn’t happen, so it is not reasonable management action under any basis, therefore the objective test, was it fair to do it and was it done in a fair way fails on the second basis. Not done in a fair way and for other reasons we’ll talk about, it fails the first basis. It wasn’t fair in the in the circumstances. Secondly, most of the behaviour is not related to performance and it is a hazardous environment which she objectively experiences pain and harm. That experience is subjective test, so she definitely has a workers’ compensation claim.

Tom Daly: Right. Would determination result in an unfair dismissal and/or general protections claim?

Andrew Douglas: In interesting here because we’ve got both and the answer for both is yes. So let’s just start with the unfair dismissal. Was there a valid reason for termination? Well, there’s actually no evidence there was. The missing appointment and sleeping given the causative features of it lay with the business and not a valid reason. And the key strikes thing is an demonstrated test of work, which doesn’t work well with the nature of the work she did.

So it’s not a measure. So the answer is it would fails unfair dismissal just on the threshold of valid and fails every other of the other four tests. Was it done unfairly under the Fair Work Act? Was it harsh? Yes it was. Was it unjust? There was no legal basis for doing it. Yes, it was unjust. Was it unreasonable? Yes, when you look at what she was doing in the circumstance, it was unreasonable.

Tom Daly: All of this because they’ve fired her for something like underperforming in a way that is not relevant to her.

Andrew Douglas: That’s right. Not only that, they’re causative for the problems that led to it.

Tom Day: Yeah, okay.

Andrew Douglas: The second part is general protections. And that’s has a dirty smell about it very early on when it comes to the precarious nature of her employment. Because when she raises a complaint, when she raises, “I want to be permanently employed”, they deliberately alter the manner in which she works. And Ben keeps telling her, “You can lose your job any day.” That’s pure general protections. And the termination based on her complaint and advising them she is failing and then relying on spurious grounds would get up any day and reverse onus general protections. So she’s going to win. Tom, how many psychological hazards can you count? I count 17. How many do you count?

Tom Daly: The ones that jump off the page? We’ve talking about job insecurity being a psychological hazard. It’s mentioned that Ben frequently reminds her of how easily her role can be made redundant. Not only that, when she, you just said before, when she attempts to convert to a permanent role, he deliberately makes it so that she finds hard to sustain and perform in that role, by making her work erratic and complex.

Andrew Douglas: So fatigue’s also there, isn’t it?

Tom Daly: Fatigue, there’s anxiety,

Andrew Douglas: There’s surveillance as well. Intrusive and unreasonable surveillance. Can I just say to you, there are 17 hazards in this problem because we go to the egregious ones. There’s threat of violence and aggression and the experience of those.

Tom Daly: Where is that again, sorry?

Andrew Douglas: That that’s at the very beginning of the story. That’s by her husband.

Tom Daly: Oh yeah.

Andrew Douglas: But when she is working, remember those threats don’t have to come from coworkers.

Tom Daly: That was the phone calls coming through to her.

Andrew Douglas: Phone calls, standing in a window screaming abuse, threatening her. Emails to a work, email, phone to work phone. All those things are the responsibility of the employer to help prevent. Now that might mean that she can’t work from home. That’s one of the conversations should have happened a long time ago. Some of it’s a sexual nature, so it doesn’t matter that it’s an ex-husband.

They’re explicit, they relate to infidelity, they’re definitely sexual of nature, they’re definitely bullying, they’re repeated. So all four sit there. Ben’s behaviour is also repeated behaviour, which is unreasonable, which hurts, humiliates and affects her safety at work. So it’s bullying by him as well. So we’re not going too well for this business. And then we’ve got every type of poor leadership and design.

Tom Daly: I was just thinking it might be… It would be difficult I think for an employer to recognise that it’s unsafe for them to stay at home and then to have like courage to say you need to come in for that reason.

Andrew Douglas: Well, no, we’ve done it in our business.

Tom Daly: Oh really?

Andrew Douglas: Early on in the business, we had an employee who experience difficulties at home.

Tom Daly: But to order that?

Andrew Douglas: Yeah, no, where I’d spoke and we went and got some external help where we sat and we mediated the process out of it with the employee that said they are not to work at home, they are to work away from home. So I think flexible work and work from home creates certain risks, which you can’t run away from. And this case highlights it. But for Tom and I, it’s every single hazard is there, including the new ones. And that was the purpose of the problem. So the next question, Tom, is who would be prosecuted?

Tom Daly: Well, clearly Ben, I think.

Andrew Douglas: Well Ben in the business and remember, prosecution and safety law is attribution. That means whatever Ben does, the business is liable for unless he’s on a frolic of his own. He’s not on a frolic of his own. He’s doing actually what the business requires him to do. Therefore, primary breach company, primary breach for Ben, failing to exercise reasonable care to prevent injury to another person. But he is aware and therefore the business is aware of her precarious state of health.

The damage that is being done to her as a result of all the things we’ve talked about in those hazards. So this is off to reckless endangerment territory. Do I think Ben would go to jail? No, I don’t. Do I think the business would be fined, based on the most recent court of appeal, over $2 million. I think that’s a high chance it may be. And I think Ben may find himself with a pretty serious order against him as well. So there you go, guys. That’s it for this week. Tom, well done. I’m sorry I talked too much, but I thought better get you out of jail.

Tom Daly: That’s alright.

Andrew Douglas: I realised I’d asked you at the very last minute. Thanks to Thuy and the team behind the scenes for all the hard work, Nicky and the crew. See you next week.