Andrew Douglas: The new Fair Work Court.

Jim Babalis: Yeah. So, I think, Andrew-

Andrew Douglas: This is a thought bubble too, isn’t it?

Jim Babalis: Yeah. It is. Listen, how far off are we from an election? We’re at least 18 months away.

Andrew Douglas: Yeah.

Jim Babalis: Listen, to an extent, listen, maybe some of the background to this is going to be interesting. It sort of has been tried a little bit before.

Andrew Douglas: Yeah.

Jim Babalis: And I think you probably captured it much better than what I did. It’s back to the future.

Andrew Douglas: Yeah. This is the old and New South Wales Industrial Relations Commission having a court process with a judge involved in it. I’m not against it because you raised it with me and I wasn’t aware there’s been 18,000 more GP claims made as a result of AI. We’re finding the federal court or the magistrate’s division of that slow to respond. Trials are 12… Two years out.

Jim Babalis: Yeah.

Andrew Douglas: We’ve got to get through this quicker.

Jim Babalis: Yeah.

Andrew Douglas: Because the idea of the Fair Work Act is to do it expeditiously to look after and it’s beneficial legislation to look after the employee. But what we’re going to end up with is a court, which is just the federal magistrate’s court with the same types of characters who sit in the commission. I think we’ll get practical, quick decision-making.

Jim Babalis: Yes.

Andrew Douglas: I think like the Fair Work Commission, it won’t be predictable. It’s who you get on a date depending where they come from in politics, which is a real problem for us.

Jim Babalis: Yeah.

Andrew Douglas: But will it speed things up? Yes. Is that a good thing? Absolutely. Will it be practical, fast?

Jim Babalis: Yeah.

Andrew Douglas: God, I hope so, because at the moment, if you look at the GP claims you and I have got, between us, we’ve got 10 to 15 claims. We’ve had two mediations.

Jim Babalis: Yeah.

Andrew Douglas: We’ve got a directions hearing and we’ve got six months of directions to comply with. And at the end of that, we might wait a year for a trial.

Jim Babalis: Yeah.

Andrew Douglas: So, I think it’s wonderful if it works. I would just hope that we get the quality of judges that give us the level of certainty. ‘Cause I struggle to advise in the commission with certainty until I know who the commissioner or deputy president is.

Jim Babalis: Yeah. I mean further to it, I mean, the underpayments component, particularly for small claims is interesting. I think that probably is a good thing.

Andrew Douglas: Yeah.

Jim Babalis: It has been tried obviously through various enterprise agreements to have dispute resolution panels.

Andrew Douglas: Yeah.

Jim Babalis: To hear disputes under EAs as opposed to flooding the commission-

Andrew Douglas: Yeah.

Jim Babalis: With industrial disputes. I don’t necessarily think it’s a bad thing.

Andrew Douglas: No.

Jim Babalis: You know

Andrew Douglas: Oh, like a one-stop shop.

Jim Babalis: Yeah.

Andrew Douglas: Where there’s a level of predictability.

Jim Babalis: You know, we’ll see. It was floated in 2019 leading up to the election then. It didn’t really go further.

Andrew Douglas: Not much stood under Shorten.

Jim Babalis: No, no, but…

Andrew Douglas: Including Shorten. Okay. We better get on before I get myself into trouble.

Jim Babalis: We better get on.

Andrew Douglas: Why don’t we go onto the case study?

Jim Babalis: Yeah.

Andrew Douglas: Okay? Do you want to be the reader? ‘Cause you’ve got a much better radio voice than me.

Jim Babalis: I will. So, it’s Cass this time. I think last week we had-

Andrew Douglas: Imelda. Yeah.

Jim Babalis: Imelda, which I sort of loved. But anyway, and there has been feedback about Imelda, obviously the 300 pairs of shoes, but we’ll leave that one there today. “Cass was tired of the daily grind. She was the production manager for BigVit, a vitamin manufacturer in Bays water here in Melbourne. And she had seen it all. Over the years, the health and safety representative had become increasingly industrialized, and they also acted as union delegates. They challenged her at every opportunity. Cass was beginning to feel the pressure. The new owner, a Danish company called Vita miner Max.”

Andrew Douglas: Vita miner Max.

Jim Babalis: “Had growing concerns about quality, safety, and fluctuations in productivity. Cass constantly complained to the CEO and the COO, about the safety manager and the quality manager. She often laughed when she said the workplace was like a football team. They put in the equation of good performance. Spent a lot of time limping around and lived for the off season.” Okay. “However, Karl, the CEO, had grown tired of the situation. The company was receiving customer complaints. And more recently, Cass’s direct reports had raised concerns about her performance, management style, and her tendency to blame others and gossip about colleagues.” No one in this office, of course.

Andrew Douglas: Right, not one of us.

Jim Babalis: “Cass laughed off the complaints and responded, ‘How do you think I feel working in a place made unsafe by the safety manager?’ Karl met with Cass to discuss his concerns. She became angry and blamed everyone else. Somewhat disappointed, Karl said he had hoped she would acknowledge the issues and accept some accountability. He explained that given her complete rejection of the concerns raised, he would need to commence an independent workplace investigation. In the meantime, Karl directed Cass to work from home on special projects and instructed her not to communicate with the direct reports. The independent investigation found that most of the allegations against Cass were substantiated. It also identified behaviors that were unquestionably bullying. Karl arranged a meeting with Cass, provided her with a copy of the investigation findings, and advised that the meeting would be a show cause meeting. Cass responded by writing to Karl stating that she did not feel safe meeting with him. She also enclosed a Certificate of Capacity.”

Andrew Douglas: Alright.

Jim Babalis: And now we have some questions.

Jim Babalis: Andrew Douglas: Yeah. “Given that Cass had repeatedly raised concerns about workplace safety and performance, would she have a strong general protections claim?” Now, there’s a lovely line of case law that says when you’re raising issues as part of your normal management, it is not a complaint for the pur… Not a workplace right complaint.

Jim Babalis: Yeah.

Andrew Douglas: And it is not a workplace right complaint to say, you know, “Jim’s not doing this, Andrew’s not doing it.” If it’s part of the general discourse-

Jim Babalis: Yeah.

Andrew Douglas: And it forms no part of the action that was taken, it’s not a workplace right.

Jim Babalis: Yeah.

Andrew Douglas: So, it’s lovely because we commonly have this and we both got ones where this is a live issue.

Jim Babalis: Yeah.

Andrew Douglas: And I just signed off some submissions today which went through everything raised by a manager and said, “Well, none of these are workplace rights.”

Jim Babalis: Yeah.

Andrew Douglas: These are all part of management.

Jim Babalis: They generally have to be genuine concerns of, I guess, bullying and harassment.

Andrew Douglas: Yeah, they have to be responsive concerns or directed about a disability.

Jim Babalis: Yeah.

Andrew Douglas: “Could Karl proceed with the show cause meeting?” And this is connected to question three. “If so, how should he conduct it?” Now, you’ve got a Certificate of Capacity.

Jim Babalis: Yeah.

Andrew Douglas: So, you’ve got a person, and remember, in most jurisdictions, you’ve got a provisional liability period.

Jim Babalis: Yeah.

Andrew Douglas: So you are able to continue. The claims not accepted. Should you do it during provisional liability period or during the acceptance period of a claim? It’s a really nice question. So, it turns on the nature of the severity of what has occurred and what is the premium risk if you get it wrong.

Jim Babalis: Yeah.

Andrew Douglas: A good question. If I get this wrong, what impact will it have on premium? So, the short answer is, if it was me, I’d write to Cass and say, “Look, it’s okay, here is the concerns. We’ll give you an extra 10 days to respond in writing. We look forward to your response. If we don’t receive an answer in writing or if there are medical reasons which prevent you from doing so, we will deal with it on the evidence we have, or if we aren’t able to deal with it based on medical evidence, then we’ll put it off until such time as we can.” You’re in a great place.

Jim Babalis: Yeah.

Andrew Douglas: That kind of takes us to question three. Sorry, I didn’t read you in on my sneaky bits here, so it’s not fair.

Jim Babalis: No, no, no, that’s okay. That’s okay.

Andrew Douglas: “What strategy should BigVit adopt in managing and responding to Cass’s claim while also progressing the matter towards a possible termination?” Now, this is the trick. Okay, this is the trick. You got to do the investigation.

Jim Babalis: Yeah.

Andrew Douglas: It’s tied up. You got a circumstance investigator, which unfortunately is inclined to be a retired police recently, which is a bit of a worry.

Jim Babalis: Yeah.

Andrew Douglas: Who are looking to prosecute rather than to think.

Jim Babalis: Yeah.

Andrew Douglas: So, what you do is you build your findings and your evidence and you give it all to the circumstance investigator to demonstrate the truth of what you’re doing and that it’s reasonable management action.

Jim Babalis: Mm.

Andrew Douglas: Now, if you do that, that goes back to the insurer and the insurer is left with, and circumstance investigators don’t get paid much and they’re a little bit lazy. They’re inclined to accept that. You’ve fed the insurer something which gives them a power to reject the claim. And then you’re directly onto the insurer and saying, “Please reject this claim.”

Jim Babalis: Yeah.

Andrew Douglas: Who then suggests to the government, if you’re in Victoria or Queensland or New South Wales as it now is, the claim’s got to be rejected.

Jim Babalis: Yeah.

Andrew Douglas: At that stage, once the claim’s rejected, the termination is not a problem so long as you can show no connection to the claim.

Jim Babalis: Itself. Yeah.

Andrew Douglas: Otherwise, you’re in breach of workers’ comp legislation and general protection. So, all of this is about getting your evidential ducks in a row, so when the claim is rejected, you can hold off doing all the right things until after that occurs. And at that stage, you can proceed to terminate.

Jim Babalis: And localizing it to performance and conduct.

Andrew Douglas: Totally.

Jim Babalis: Yeah, yeah.

Andrew Douglas: Away from… Anyway, so there you go.

Jim Babalis: Interesting though. Yep, yep.

Andrew Douglas: Yeah. So, I should have warned you but I do terrible things to Jim and he never knows they’re coming.

Jim Babalis: Well, neither do I. What… I want to read this one out to you. “What prospects of success does Cass have in relation to a workers’ compensation claim?”

Andrew Douglas: Almost none in Victoria.

Jim Babalis: Yeah.

Andrew Douglas: Okay? Because it’s usual and typical.

Jim Babalis: Yeah.

Andrew Douglas: Don’t worry about the reasonable management staff ’cause, that’s a shoo-in, but all the issues that she raises before are usual and typical stuff of a person managing. So, would she get up though while the personal circumstances rule applies in New South Wales? Yes, she would. Would she get up in Queensland under, yeah, actually under the current regime? Yes, she would. And if we go across to South Australia, the answer is yes, she would always get up because everyone always gets up in South Australia. Western Australia, more of a common law jurisdictional complex.

Jim Babalis: Yeah, yeah.

Andrew Douglas: Northern Territory, yes, she’d get up. Tasmania, yes, she’d get up.

Jim Babalis: Yeah.

Andrew Douglas: So, there you go.

Jim Babalis: There you go.

Andrew Douglas: It’s not easy, is it? “Cass lodged a complaint with WorkSafe attaching a medical certificate study that she’d been bullied, isolated, removed from work, and was suffering PTSD and anxiety. How might this complaint, BigVit’s management of the matter?”

Jim Babalis: Well, this sounds like, I don’t know, Andrew, I might have a different view to you. It sounds like a bit of a whinge though, doesn’t it?

Andrew Douglas: It is.

Jim Babalis: Yeah.

Andrew Douglas: Now look, you might get WorkSafe on a lazy day coming out.

Jim Babalis: Yeah.

Andrew Douglas: And issuing their Section 100 notice.

Jim Babalis: Yeah.

Andrew Douglas: And the short answer is as long as you could show when WorkSafe or any other regulator came out, your risk assessment process, your policy, and your incident process, they’re unlikely to go further, but even if they did, they’d come back to your own investigation, which would show that they should get back in their car-

Jim Babalis: Yeah.

Andrew Douglas: And go home. And so it would not affect it at all.

Jim Babalis: Yeah. I think, all the steps in terms of aligning as to how you got to that decision process, I think will be fine.

Andrew Douglas: Yeah.

Jim Babalis: But it does seem like-

Andrew Douglas: Don’t be too scared by WorkSafe.

Jim Babalis: No.

Andrew Douglas: Work safety regulator. This commonly being run. The reason that question is in is it’s a live issue in most of the matters.

Jim Babalis: Yeah.

Andrew Douglas: The more complex matters I’m dealing with, get your ducks in a row, WorkSafe are gone. Okay? God, Jim, it’s fun doing this with you.

Jim Babalis: Fantastic.

Andrew Douglas: We got through. Yeah.

Jim Babalis: We got through.

Andrew Douglas: Cheers.

Jim Babalis: Thank you.