Kim McLagan: Our main topic, but first we’ve got a case that leads into it about a lady who was working from home.

Andrew Douglas: The pet fence case.

Kim McLagan: Yeah. She set up a barrier into the entrance to her office to separate her puppy-

Andrew Douglas: And the rabbit.

Kim McLagan: And a rabbit. And getting up during an authorised coffee break, she tripped over the fence and injured her shoulder and knee, and her employer said, “No, we’re not liable for this.”

Andrew Douglas: And I just want to say to you, what is an authorised… How do you know an authorised break? I know I’m starting this argument early-

Kim McLagan: A bit early, but…

Andrew Douglas: But really?

Kim McLagan: Yeah.

Andrew Douglas: Anyway, compensable, isn’t it?

Kim McLagan: And her claim is compensable because employers aren’t expected to know everything.

Andrew Douglas: Yeah.

Kim McLagan: And she got away with it.

Andrew Douglas: Yeah, I mean, the reality is workers compensation is not a causation-based.

Kim McLagan: No, no fault.

Andrew Douglas: So, it’s no fault, is it? It doesn’t matter how… You know, I think there was a chief justice in New South Wales who said, “Safety law is about stopping stupid people “doing stupid things.” Workers compensation is just… It doesn’t matter if they get injured and they’re at work. That’s it.

Kim McLagan: Doesn’t matter how stupid they were.

Andrew Douglas: Doesn’t matter how stupid they were. They could be chaotically stupid. Unless they intentionally do the wrong thing and harm themselves as a result of that, you have no way out.

And we both thought this is a funny case, didn’t we? And we thought, well, it really does show what the level of risk is, but I guess my level of risk from dealing with half a dozen employees who are really struggling with flexible work at the moment is this.

We have not been courageous enough to describe what is flexible work in a manner which means safety law, employment law, and workers compensation law. So, the classic issue of someone working from home, we don’t want to be watching keystrokes, okay?

And I know there’s insurance companies have done that, which is sort of predatory and stupid and erodes trust, but when you allow people to work from home, you don’t know what the safety of the house is that day.

Yeah, we look for safety law. We require people to take photos, do a risk assessment. Everyone should do that as an absolute minimum. Make sure the office space is a dedicated space that’s cleared from things, but the dog still, my dog, comes and sits under my feet. I’ve still tripped over my dog on the way out.

So there’s all these level of risks, which we don’t have at work. So that’s one issue. We’ve got safety law issues, workers’ compensation, but this is a flow on from COVID where people arrange their lives around working virtually.

So people are going to doctor’s appointments. People are going out for a walk rather than having a coffee. They go out for a walk, go buy a coffee down the road. They’re still on compensation at this stage, by the way.

Kim McLagan: Yeah, that’s right.

Andrew Douglas: So all the things they’re doing are all things that they don’t do at work. And on top of that, because they’re not working two or three of the hours a day, they’re catching up. ‘Cause people are good. People are not trying to be tricky and get out of work, but instead of that, they’re working outside ordinary hours, and under all awards when they do that, there’s penalties and loadings that come in on that.

And so what we are creating is this sort of minefield around what is work ’cause work at home is not work at work. Work at work is you come to work, you work a number of hours.

If you’re a lawyer, you keep working and working and working, but if you’re not a lawyer, then you go home. But at work, there is a dedicated commitment to being at work.

But our own experience as a firm and as acting for people is that’s not what is happening. So two or three times in the last two or three months, I’ve tried to reach somebody and they’ve rung me back and said, “Look, I was just off at the dentist,” and I knew nothing about that.

Now I know because awards don’t attach to the lawyers, that’s not such an issue to me, but I did say to the people, “Look, these are working hours. If you are going to do this, let us know, so I approve it.”

Kim McLagan: Yeah.

Andrew Douglas: But if they’re award-based employee, I know that that’s kicked into overtime. I know that’s kicked other issues into play.

So, I guess the reason Kim and I are raising it is when we spoke about it, both of us thought, everyone’s so reluctant to talk about this. Everyone is saying, no, no, let’s not have this fight because people are tense. It’s very hard to recruit people. Flexible work is now an essential part of recruiting people, but the answer is, what’s wrong with just telling people the truth and saying, look, let’s talk and recalibrate working from home? Working from home has these safety assessment processes, which must be carried out.

How many businesses now doing safety assessments like we did? Almost none. It does require being on and being available between the working hours, okay? It does require you, you know, to take breaks. At the time, breaks meant… Because everyone’s work is around the expectation that everybody’s available during a particular time. That’s why breaks occur at a particular time. But if you don’t do that, your exposure is not just workers compensation. Although that exposure is high, and we’re going to give you a problem, which shows how difficult it is to determine whether it is compensable or not in some circumstances.

Your safety risks are high, and we’ve already had safety prosecutions around it. Your employment risks are massive. And then comes the question of, well, can a person who’s worked flexibly then switch off at six o’clock and say, “Don’t connect with me” even though they haven’t done their work? Because you’ve condoned a work practise that allows people to work less than their usual hours. You’ve allowed people to start at 9:30. You’ve allowed people to go out to doctor’s appointment, to catch up with coffee for friends. You’ve allowed them to drop their kids off at school, pick them… You’ve allowed them to do it, but it means they’re no longer working eight hours or 7.6 hours. They’re actually working five, but you’ve permitted it.

Kim McLagan: Yeah.

Andrew Douglas: So can they then, when they haven’t finished their work at the end of the day and you chase ’em up and say, “Look, those two documents haven’t come through,” they can ignore and say, “I don’t have to… I don’t have to return this call.”

Kim McLagan: Well, that becomes a performance issue then, I suppose.

Andrew Douglas: Well, it does, but the issue is you’ve already created a contract that’s different. You know, in the Kozum and Qantas, if you’ve been letting someone work five hours a day for a year and a half with all those interruptions and expectations, it’s very hard to recalibrate and say, “Well, no, you’re meant to work eight hours.”

Now of course, it’s going to go. Of course, you meant to work eight hours, but it’s going to be a nasty fight, and it’s one you should’ve never had, and you’ve lost a year and a half’s production.

So, I guess my point about all this, Kim, is I’d like the people just to go back to basics, which is if you’re working flexibly, re-agitate what flexible work looks like because now, most people are doing what they feel like when they’re working from home.

Kim McLagan: And so there should be policies in place for working from home.

Andrew Douglas: Not only policies, but a real-

Kim McLagan: Consultation and…

Andrew Douglas: Yeah, real agitation with people, what expectations are and a reminder of those expectations, and regular catch-ups. All the stuff we did in COVID to maintain relationships has gone by the wayside.

And so the catch-ups that were so much part of integrating people and keeping people connected have also gone, but the practise is still there. So I think it’s time for refresh anyway. Why don’t we try the case study, which I wrote. This is a short one for once

Kim McLagan: May be short, but it’s funny.

Pete loved the post-COVID world. These days, he worked from home three out of five days. His role as an online sales representative for a tech business fit perfectly with working from home. As a self-confessed tech geek, he eschewed frequent contact with people and social gatherings. He was also a gamer in his spare time, and he loved it, particularly Valorant. “Valorant?”

Andrew Douglas: Yeah, “Valorant.”

Kim McLagan: Which he achieved Radiant status, the top level. Is there such a thing?

Andrew Douglas: Only five… Yeah, yeah.

Kim McLagan: Did you make that up?

Andrew Douglas: No, only 500 people in the world have that status.

Kim McLagan: Oh, pretty good. How do you know that? Anyway, conversation for later.

He arranged his life around looking after his two pet dogs, picking up his girlfriend from university, and doing all his household chores and medical appointments at convenient times during the day, but he always hit his KPIs, often working late into the night.

He and his girlfriend, Little Rock, her gamer nickname, had a gaming room next to his study where he worked from home. He would often take a lunch break or coffee break in the gaming room, preparing for the midnight fights online. One day, he tripped over a cord connecting his work laptop to the internet in the gaming room and injured his knee. Although it was 3:00 p.m., a work time, he was leaving the gaming room after a coffee when he tripped.

Andrew Douglas: All right, so what’s our first question? Is there any employment law risk? Can you see that just jumps up? He’s a guy, he’s clearly an award-based employee.

Kim McLagan: Yeah.

Andrew Douglas: So he’s working outside of ordinary hours. He’s entitled to penalties. And you’re allowing somebody, yeah, hits his KPIs, but nobody else can contact him at relevant times. He’s not connected inside the business in a way that… So the employment law risk is clearly award breach, okay?

Kim McLagan: Okay.

Andrew Douglas: Is it okay during working hours while working from home to do home-related tasks, arrange medical, not work? No, it’s absolutely not, but it is constant. We hear about this. There wouldn’t be… One in every five conversations I’d be having with people when I visit them is talking about the problems they’re having with people working flexibly on these issues. Now question, is his injury compensable?

Kim McLagan: Okay, so it depends. If he was working prior and he’d gone into the gaming room to have a little coffee break and then he was heading back to work, absolutely, it would be compensable. If he hadn’t logged on or wasn’t working immediately prior, even if he was heading back to do work, I don’t think it would’ve been.

Andrew Douglas: Here’s the rub. What about if he says, “Look, my work hours are nine to five. It happened at three o’clock. So it was definitely in my working hours.”

Kim McLagan: Still won’t matter. They will look at the circumstances of what he was doing on the side.

Andrew Douglas: Okay, well, that’s nice to know that. Well, what do we got for next, safety law? Well, can we just be clear about safety law? Where a person’s work environment is and where they access or go during working times is part of a workplace. So your kitchen is part of a workplace if you’re regularly going to kitchen having… Do you see why working from home is so complex? This was not safe. It had a tripping hazard. Yes, the tripping hazard is relatively low in terms of high risk activity, but it’s clearly a breach of safety law.

Kim McLagan: Yeah, and for him, what would concern me is the fatigue management. If he’s seeing daylight on the days that he’s not at work, is he getting any activity at all?

Andrew Douglas: Yeah.

Kim McLagan: They’re all things that an employer has to manage as well.

Andrew Douglas: Yeah, and remember, part of a risk analysis is the people you’re dealing with. So, I was up in a rural community yesterday talking about high risk activity where farmers are part of organisations and they come and help for free, okay?

And I said to them, “You do understand the risk appetite for people in rural communities is much lower.” They don’t care. They’re so desensitised to risk, but they’re driving tractors onto a site, which are not safe plant, doing non-safe things with no risk analysis. So it comes back.

One of the biggest risks you’ve got to think about is, what are the people that doing the work? So it goes into your assessment of risk. If someone’s repeatedly doing gaming, working late at night, working chaotic hours, you’d see their chaotic hours. Fatigue is a real issue, which means the likelihood of injury from tripping increases much higher. So you’re right, it’s good point.

Employment law, what must you do? I think we’ve really pushed this home, but I want to push it again.

It is time for refresh for all organisations to say, do my contracts quite properly connect with my policies and the behaviours that come out of it? Are people doing things around flexible work, which aren’t flexible work for the purpose of the Fair Work Act, in other words, carelessly looking after whatever it is where there is a particular process? Can you clean it up? Can you go through and do an order on what you’re doing and go, okay, flexible work, we need a letter, is there a business reason to say no? Is there people with long established behaviours, which are not, okay, we need to do a reset, but we understand that there could be some risks?

But be clear about what is working from home. It is actually working. It’s not doing work when you feel like it. It’s not do work when you feel. I can’t do all the letters together. Do work when you feel like it, work from home. It is actually you’re running a business, and businesses require a commitment of a period of time so that everybody can communicate and execute work in a coherent way.

As everyone starts working different hours, that falls down. So, A, the quality drops off, deadlines drop off, but most of all, people aren’t part of a team delivering coherent, clear advice.

So you lose all the institutional knowledge that sits in there as well as people just do their piece rather than understand what Kim’s doing, what Nina’s doing, what anyone else is doing.

And I just put the last question about disconnect down for the question I raised earlier. Just say he hasn’t finished his work and his employer’s starting to worry ’cause he’s only done a couple of hours work. And the employer rings him at six going, “Hey, Pete, what’s going on?” and sends him an email. Can Pete ignore that? Yeah, and if they act upon his failure to respond, well, then it’s general protections claim.

So, there’s this little sting in the tail around the right to disconnect. It’s not a big issue, but it’s alive ’cause when people are working at nighttime, the issue is, how do you actually manage someone who’s not working during normal hours? Do you start managing them at nighttime, and what is the risk that comes with that?

So then that’s just an interesting, interesting problem.

Kim McLagan: It was.

Andrew Douglas: It’s very relaxing it seemed.

Kim McLagan: It is actually, yeah.

Andrew Douglas: You know, I quite like that, except my nose gets longer as I come forward. Look it there. There, great to have you here.

Kim McLagan: Good to see you.

Andrew Douglas: Thumbs up for us. Thank you, we need a bit of thumbs up. And enjoy. See you, later, bye-bye.

Kim McLagan: See ya.