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Friday Workplace Briefing

The Big Fight Over Award Flexibility

In this week’s Friday Workplace Briefing, Andrew and Nina discuss the big fight over Award flexibility. The unions push for flexibility unless unjustifiable hardship – where will it end up?

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Well, again, Nina’s told me not to say this, so I’ll say it. As we see around the award modernisation, and arguments around what’s going to be in the most recent awards, what we, what we really have is a group of people who all eat from the same trough. And that’s unions and industry organisations.

So in the flexibility space, you would’ve thought industry organisations would’ve said, “Look, we’ve got enough. Let’s stay where we are, and let’s let employers manage that process.” You won’t be surprised to learn the Australian industry group has gone further than that into flexibility, which you’d sort of look at them and wonder, “Is that a good idea?” No, but the unions have really gone a step a lot further, which is to completely open the flexibility argument to, you’ve got to provide flexibility to all people unless-

Nina Hoang: Unless you can prove unjustifiable hardship. So it’s much harder threshold to prove than just reasonable business grounds.

Andrew Douglas: Yeah, and of course all of us know that, how do we prove the needs for socialisation, the needs for collective thinking in person, or how do we do those things, which we know are incredibly important? And there are people who just don’t want to come back to work. How do we, how do we work as an organisation under those circumstances?

Nina Hoang: But it’s not just that. There would be organisations where people request something, and it just wouldn’t fit within the business plan to do it, because it’d be like an excessive use of stuff. And that would not cause unjustifiable hardship. But if you had to then grant everything, then how could you possibly run a business?

Andrew Douglas: I know. It’s just nonsense. And unfortunately, as with all fashionable concepts, you know, flexible work has reached the stage of entitlement. That’s based on a “Herald’s Sun” version of what is flexible work, which is absolute flexibility working from home all the time. And now we’ve got unions saying, “Yeah, I agree with that.” With irrespect of how it impacts industry.

Nina Hoang: Yeah.

Andrew Douglas: And you’ve got in-

Nina Hoang: Yeah. Or how it will practically imply.

Andrew Douglas: And you’ve got an industry group who’s seeding ground on an issue, which every employer is complaining about and saying, “This is causing us enormous problems with the current law.” So you can, we’ve really raised it because-

Nina Hoang: To be clear, those employer associations are not supporting the unjustified-

Andrew Douglas: No, they’re not doing that. But they are seeding other ground on it.

Nina Hoang: Yeah.

Andrew Douglas: And the issue for us is, someone needs to ring them up on a regular basis and say, actually, “Are you there, Chris? Can you stop doing it?” And take a stronger stance around, well let’s talk about, the law says flexibility under very limited circumstances, and let’s give employers the power to actually manage their workforce, rather than to have that power removed from them. And by seeding little bits of ground, you feed the fire.

Nina Hoang: Yeah.

Andrew Douglas: Anyway, that’s, you can see today is my rant day really, isn’t it?

Nina Hoang: Yeah. Who’s indemnifying you for all this?

Andrew Douglas: Yeah. Me.

Nina Hoang: On to the case study.

Andrew Douglas: On to the case study. Now what can I just say about this case study? This was typed on a plane, and in the back of a hire car on the way to work today. So if there’s-

Nina Hoang: But I fixed it.

Andrew Douglas: Did you?

Nina Hoang: Yeah.

Andrew Douglas: That’s good. You’re indemnifying me then.

Nina Hoang: It’s like a vicious cycle.

Emile was a counsellor for Real Life Limited. RL was a not-for-profit company that focused on youth justice with a vertically integrated service provision starting with services that include counselling and advocacy for children who have suffered trauma, including violence and sexual assault. It was common for Emile to work alongside youth justice advocates in RL, who pursued both legal and social justice for harmed adolescents. They undertook the sessions outside usual work hours as it suited them both.


Andrew Douglas: Now that’s wrong. Let’s jump into that part. We’ll come back to that. Ignore that last bit.

Nina Hoang: As part of her role, she read case studies, saw photographs and videos that were graphic.

Emile, like all psychological counsellors, was subject to a clinical Supervisor, Carl. This was different to her work Supervisor, Megan. Carl spoke to Emile about her workload. They spoke about difficult matters, and he would test her reasoning, and suggested treatment parts. He also checked in on her. The supervision was always undertaken virtually as Carl lived in Canberra and Emile in Melbourne.

Andrew Douglas: And was always done out of the house, ’cause it suited them both. That was actually-

Nina Hoang: Yeah.

Andrew Douglas: You fixed that.

Nina Hoang: I did. I did fix it. . I want to complain to Seb.

Carl did not observe any discernible change in her until 13th of March, 2024. Emile attended the session with him in tears, and explained she was having graphic nightmares of many of the things she had read and saw, and nothing seemed to stop them. He recommended she get professional help immediately and tell her bosses. She said she had already done both. Carl sought and was given permission to speak directly with the head of clinical care at RL. Like Carl, the head of clinical care lived in Canberra and worked with Carl as lead counsellors and trainers for RL.

In February, 2024, her supervisor at work, Megan, became concerned by Emile’s obvious mental deterioration. She had many absenteeism issues, stopped her cautious style of grooming, appeared sad, was often sullen and uncommunicative, and several clients had complained she appeared uncaring, a stark contrast to her past behaviour.

Nina Hoang: Yeah, you fixed it.

Andrew Douglas: You gave me like a minute. I fixed a lot more than this.

Megan arranged a private chat with Emile on February 2024. She explained her observations, and also client consent. Emile asked, “Is this performance management?” Megan clumsy said, “You need to tell us what the problem is and how we can help, but I also need to protect our clients.” Emile said, ‘So you don’t trust me. I am leaving.” Megan said, “Please don’t take this the wrong way. I care about you, but also must ensure our clients are safe.”

It was all too late. Emile left and slammed the door. For the next two weeks, Emile’s attendance was erratic. This put clients at risk. Megan and HR several times wrote to her, and arranged meetings with her seeking clarification around what was distressing her, how they could help, and their client concerns and how to best manage. But she refused to attend.

Andrew Douglas: I’ll take over.

On the morning of 13 March, 2024, she’d been directed to attend a meeting with Megan and HR. It was a lawful and reasonable direction. She attended with the union organiser. Within seconds of entering the room, she looked at Megan, shouted, “You’re trying to sack me. I have no choice. I’m resigning.” And left.

Alright. Nina’s got, Nina’s got some problems up after reading my very lengthy story. So I’ll just read the questions and we’ll talk.

If she came back tomorrow and said it was a heat of the moment, would her resignation have have ended her employment?

And the answer is, as we’ve said before is no.

And look, I put it in there just, I guess to remind people that lots of people do things when they’re upset, and just cool your heels. Even if it’s somebody you desperately want to go, make sure you connect and communicate the next day to satisfy they’re safe.

Nina Hoang: Yeah.

Andrew Douglas: And also, if it is a permanent decision, you document the decision and send them-

Nina Hoang: After you talk to them to clarify. Yeah.

Andrew Douglas: Alright, well that’s good. We’ve got that one. We’ve agreed that one together. We haven’t tested this today by the way. So we could come with very, very different answers.

Other than clinical supervision, there was no other safety system around her work. Was this a breach of safety law?

Nina Hoang: Yes.

Andrew Douglas: Yeah, absolutely. Because her off clinical court services.

Nina Hoang: Particularly ’cause they were well aware of it. Like she had raised her concerns. And having a clinical supervision is better than having just EAP. But it’s not enough, ’cause it didn’t actually do anything to eliminate or reduce.

Andrew Douglas: And it also has an administered barrier from her work. So you can’t go around that. You can look after on this side-

Nina Hoang: Yeah.

Andrew Douglas: Clinical supervision, but you can’t go around and change your work behaviour. That is left as a job to her.

Nina Hoang: Yeah.

Andrew Douglas: So again, if we look at the truck case, if we look at the other cases we’ve talked about like the and grammar, here is a known high risk. There’s high court cases telling you this is a high risk.

Nina Hoang: Yeah.

Andrew Douglas: And to not have a system that actually deals-

Nina Hoang: Not even a basic system.

Andrew Douglas: Means you’re in heaps and heaps of trouble. Particularly if we go to the next question is.

Other than clinical supervision, there was no other safety… We’ve done that?

Nina Hoang: Yes, we’ve done that.

Andrew Douglas: Okay. I think we have got this. Let’s go again. Next, go.

Nina Hoang: Next. Next slide.

Andrew Douglas: Next one. Here we go. Could a Emile have-

Nina Hoang: -made a worker’s comp claim?

Andrew Douglas: Now, I want to go, there is a, there is one that’s missing here, which is, if as a result of this treatment, Emile walked out in front of traffic and injured herself because she was so disconnected from the world, and was full of anxiety, is there a claim that could have been brought against Megan and the organisation?

And the answer is absolutely there is. It’s a reckless endangerment claim.

Nina Hoang: But I don’t think it would be industrial manslaughter.

Andrew Douglas: No, not industrial manslaughter. But let’s just step through why. At the time they went to see her, she did not attend any meeting she was directed to go to.

At that stage, you’re on definite notice this is a person who is in high level of stress, acting naughtily, but at the same time, at a very high level of stress. Whatever you’d had to do at that stage, you would’ve staged an intervention before you even got to any performance based discussion to satisfy that she was in a safe place.

Nina Hoang: I think this is really important because a lot of times we’ve had clients come to us and say, “Oh, it’s because the employee is not cooperating. So we’ve done everything that we can.” But just asking people for meetings is not sufficient to discharge your owners.

Andrew Douglas: No, because once you, look, Birken Suncorp started a discussion. North General Health followed that in Kubert’s case. One of the things that monitoring health means under safety law, and it, and it follows into other workplace law, ’cause that’s where Birken, Suncorp and Cooper in those cases come from, is the moment monitoring is triggered, that is an appreciation of a person has a, has a health related issue, you got to stop everything and go, “Aright, what do I need to do to satisfy myself that person is safe?”

Now if they’re in work, in other words, still employed, it doesn’t matter if they’re at home, I need to then understand is this person safe. So first thing is I need to find out they’re safe.

Second, I need to satisfy myself before I take any further steps, that any discussion we’re going to have is going to be a safe discussion.

Now, that means advising the person of the nature of the inquiry you’re about to do, and why you’re having this conversation. And it should be a focus on their health, not on the risks that are arising.

So at that stage we get straight to reckless endangerment because we have a knowledge of risk, serious injury or death. And although we do something about it, we’re going to have a general conversation about performance, about risk to clients, all this thing. That’s not enough.

Nina Hoang: Yeah.

Andrew Douglas: So it gets to the carelessness that goes to reckless endangerment. So I think Megan would probably escape it because she’s clearly an innocent, if that makes sense. Not innocent of the the, of the wrongdoing, but when you look at what she’s doing, she’s fumbled and made mistakes, but her best interests, courts wouldn’t like her prosecuted. Okay?

But they’d certainly go after the organisation given its corporate knowledge. And that’s under any state jurisdiction. You know, whether it’s under section 144, actual knowledge of officers within organ… I think the officers would be at risk here as well.

So anyway, look, an interesting case study. I thought we’d better move on. I just saw your face then that says we have 30 seconds left.

Would Emile have any other legal claims? And we’ll, we’ll follow in workers’ compensation. She’d definitely have a worker’s comp claim if she brought it at any stage. And there’s some real arguments, had she been represented by lawyers early on, they would’ve set up adverse action claims.

So I think this is a case that shows from what appears a relatively simple issue of someone suffering. You’re trying to work out what was going wrong, and then trying to manage it, but balance client interest, that you’ve actually turned into a position of turmoil where there’s huge amounts of liability and you’re harming someone.

Nina Hoang: Yeah.

Andrew Douglas: So that’s it really. Now, what’s up next week? I don’t know. We’ve been running a bit hot this week, haven’t we?

Nina Hoang: Thank you for joining us for like a very jam packed session.

Andrew Douglas: Yeah, and thanks for tolerating us as well. Me anyway for being grumpy.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Thumbs up. See you next week. Cheers.

Nina Hoang: Bye.

Andrew Douglas: Bye-Bye.

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