Andrew Douglas: The main topic today is the CFMEU case, which is went before the High Courts as an original jurisdiction. Because there was an argument by four members of the CFMEU saying that the appointment of administrator would prevent them from being able to use the resources of the construction and general division of the CFMEU to prosecute their implied rights of political speech.

Tom Daly: Right.

Andrew Douglas: Tell us what happened.

Tom Daly: So yeah, the new laws that have come, that were introduced in 2024 establishes a scheme for the administration of the construction and-

Andrew Douglas: General, yeah.

Tom Daly: General division of the CMFEU.

Andrew Douglas: Yeah.

Tom Daly: And the administrator, Mark Irving I believe.

Andrew Douglas: Yeah, he’s a silk. Yeah, who was appointed.

Tom Daly: So he has taken control and put them into administration.

Andrew Douglas: Yeah, he, as part of being an administrator, will take control of the resources.

Tom Daly: Right.

Andrew Douglas: And so these four people representing the construction general division said, “Well look, when he takes control of those resources, I can’t use them to prosecute this implied right that I have under the constitution to say what my political views are and to challenge other people’s political views.” And what this put, and it’s not been decided by this case, in fact it’s been put off in some ways, is, well what is this implied right of political speech that you have?

And what the high court found is, well, this legislation was created to deal with dishonesty, criminality and things within the CFMEU in a dysfunctional organisation. And there has to be a method of controlling the misuse of, potential misuse of monies by appointing an administrator. And if that has the effect of reducing your capacity to actually fund political speech, it’s not a breach of any implied right.

But what the unanimous decision also said is, this is not an issue we need to determine in full today. It’s something that deserves a proper discussion in itself. But in the circumstance of this case, we have an organisation where it is argued that there has been dysfunctionality around the use of money, that there must be a method of remedying that. And the appropriate method is to appoint an administrator, and therefore it will prevent some of the things that you may want to do by spending resources, but it will not infringe your implied rights under the constitution.

Tom Daly: Can I, so just to be clear, are they saying that it’s not a breach of their implied right, or it is, but there is a good reason for it?

Andrew Douglas: No, it’s not. What they haven’t been able to define, Tom, is what does that implied right actually look like?

Tom Daly: Yeah, ’cause it’s not an absolute right like in other countries

Andrew Douglas: No, it’s not an absolute right. So it is a right that exists there, but clearly where there is dysfunctionality within an organisation, particularly around the use of monies, the appointment of the administrator is an appropriate step to take. And if that prevents you allocating resources-

Tom Daly: Towards political things.

Andrew Douglas: Then so be it.

Tom Daly: Yeah.

Andrew Douglas: Doesn’t stop you talking, doesn’t stop you going out and arguing. Doesn’t stop you doing any of those things. It just prevents you from using the resource. And the argument was all around the use of resources.

Tom Daly: Yep.

Andrew Douglas: Well, I reckon it’s probably time now for us to go on and have a look at our case study.

Tom Daly: Case study.

Andrew Douglas: Which should be pretty novel for you ’cause I suspect you haven’t read it. So here we go.

Tom Daly: Yeah, see how we go. Okay, so, “Nancy did not get along with Millie. They both worked for Cedric, an older man who even at his loudest was circumspect. Nancy and Millie were payroll and debtor clerks respectively, working under Cedric, the company accountant. They both complained to Cedric about each other, found fault with each other’s work, and drove Cedric spare. Cedric raised the issue with Naomi, head of people and culture. She expressed her dissatisfaction with young kids at work and told Cedric to keep them on a tighter leash. Cedric called them into a meeting room. He explained that they were always unhappy with each other, never supportive, and that their, both of their work was suffering.

He asked them to stop it, to be respectful, and warned that if the behaviour continued, he would have to begin a formal performance management process. Millie left the room first, she was sad and dejected. Nancy stayed behind. She glared it Cedric and said, ‘You’re just going to let her get away with everything, aren’t you?’ Cedric replied that he didn’t share Nancy’s view of Millie. Nancy stood up and stormed out. Seconds later, Cedric heard a terrible smashing sound. He ran to the end of the corridor.

There was Nancy, blood dripping from her arm. She had punched a hole in a glass window. Cedric took out his clean handkerchief, pressed it on the wound and asked her why she had done it. Nancy wasn’t hysterical, in fact she was quite subdued. She looked at Cedric in a menacing way and said, ‘Because you’re a do nothing fucking idiot. It makes me mad.’

Andrew Douglas: F-ing idiot.

Tom Daly: “‘And it makes me mad.’ Cedric was angry now, what a foolish and rude woman. In a calm voice he said, ‘That’s it, Nancy, you’re fired. You are rude, destructive, and aggressive.’” Okay.

Andrew Douglas: Alright. So there’s the facts, mate.

Tom Daly: Yeah.

Andrew Douglas: So let’s see what the first questions are. I’ll tell you what, our teleprompter is running a bit slow today so it’s not got the good gas, has it? Okay, so the first question is, Millie made a workers’ compensation claim, alleging her workplace was not safe, and that had caused her to suffer anxiety and depression. Her doctor agreed. Will her claim succeed in Victoria or elsewhere? So Tom, in Victoria it’s not going to succeed.

And the reason it’s not going to succeed is, since the new amendments have come through, that type of dispute that arises between two people is a defence for rejecting a claim, okay? So she wasn’t present during windows being smashing, but between the two of them, over a period of time, there’d been a level of frustration and difficulty. But there was no proper basis under current Victorian law. In every other jurisdiction, probably not New South Wales after they amend, but in every other jurisdiction it would be compensable. Okay.

Tom Daly: Okay.

Andrew Douglas: The next one is, if Nancy commenced a general protections claim alleging her sacking was due to her raising a complaint about Millie, would she succeed? What do you reckon, Tom?

Tom Daly: I’m not sure, because I read the facts and they didn’t really, they didn’t really register.

Andrew Douglas: Okay, no, well that’s not great, really, is it? So the answer is, Nancy’s allegation is that there was this disagreement that existed between her and Millie. And she says, on that basis, that she’s raised a complaint. She’s complained about this behaviour, nothing was done about it.

“Therefore, you sack me because I raised the complaint.” And Cedric says, what actuated him sacking you is you punched a hole in the window and you’re disruptive, rude, and aggressive and I won’t tolerate it. And there was two examples of that. So she would fail without a doubt on a general protections claim. The next question is, Nancy, this is the window puncher, makes a workers’ compensation claim for serious, full-thickness, deep lesion on her arm caused by smashing the window. Is that compensable? What do you reckon?

Tom Daly: Well, I feel like this is, this reminds me of the case we just talked about with-

Andrew Douglas: It’s the donuts case, isn’t it?

Tom Daly: Yeah, that’s so far outside of her, what she’s meant to be doing.

Andrew Douglas: No, I totally agree with you. I might say in New South Wales two or three years ago, it probably would’ve been accepted, but the answer is it should never, ever, ever be accepted.

Tom Daly: Okay.

Andrew Douglas: Is Nancy’s injury a notifiable incident under the safety law? I’m going to deal with this one, Tom.

Tom Daly: Okay.

Andrew Douglas: Okay, so the answer for this is not as easy as it seems. So it is prima facie notifiable because it occurred in a workplace and related to an injury that suffered from a workplace structure.

Tom Daly: Yep.

Andrew Douglas: So, and questionably, it probably should be notified. The issue is there are variations from the Victorian theme in other states and territories which would say that there must be some greater connection to that for notification. And I, my view is that the intention of the Victorian legislation is also, there must be some attributable part of work. But I think for the purpose of the attribution is, that is the level of stress and anguish that occurred in the circumstance leading to it. So this is definitely a notifiable incident.

Tom Daly: Yep.

Andrew Douglas: If Nancy made an unfair dismissal claim, was Cedric’s process so flawed that her claim would succeed? If so, what would be the remedy?

Tom Daly: Well, he sort of fired her on the spot after she’s lashed out at him.

Andrew Douglas: Yeah, I put this one because, I think at this stage his response to exactly what she just did is so self-evident that I’m not sure that the lack of procedural fairness would be fatal. But the case law would suggest there’s a high likelihood it would be fatal, okay. So it may be that it wouldn’t succeed, but her remedy would be very small. It would be just her normal notice period, and there’d be a significant discount for a misconduct.

Tom Daly: Yep.

Andrew Douglas: Okay. Were there other safety breaches by Naomi, Cedric, or the company? And if so, what would be the charges, why, and likely penalty? Now, the reason I’ve said this is, although this may not be compensable in Victoria, clearly their failure to deal with psychological hazards is a breach of safety legislation primary duties.

When two people are arguing and it’s causing them stress and harm, that’s a psychological hazard. Their failure to intervene is a breach. I don’t think that’d ever be prosecuted, I might add. But unquestionably, there is a breach so I don’t think charges would be laid and I don’t think there’d be a penalty. But I’m not saying in five years time whether that would be the case, ’cause we’ll see regulators increasingly stepping up. But this is at the very low end of where they would step up, and they wouldn’t get authority to issue proceedings on this one.

Tom Daly: Okay.

Andrew Douglas: So there you go, guys, that’s the end of it. That’s a bit of a wild old day today. We’re running against time, we’re a bit tired, a bit weary, and we’ve all been sick. So we’re lucky to have any of us, really. That’s the short answer.

Tom Daly: That’s show business.

Andrew Douglas: Thanks for stepping up, Tom.

Tom Daly: No worries.

Andrew Douglas: Thanks, Thuy, for putting up with us. And we’ll see you next week, cheers.