Andrew Douglas: Well, why don’t we have a look at the main topic today. This comes out of a case with the ACCC, which eventually got all the way through to the high court. And it was around the CFMU saying to an employer, “Whatever you do, don’t employ that subcontract, ’cause if you do, we’re going to take industrial action.” Yeah, so what is it a boycott? The boycott is entering into an arrangement with another person to prevent the benefit to a third party. That’s what it is.

Tom Daly: Right.

Andrew Douglas: In industrial relations terms, when you look at major industrial action, there are secondary boycotts running right, okay? There’s the union saying, “If you do this, if you let those contractors come on the site while there is industrial action on, we’ll do X, Y, and Z.” So that’s where you commonly see it. What this case dealt with though was, well, when you were saying there is an arrangement, this collusive relationship, arrangement, understanding, or agreement, what is the evidence that you’ve able to demonstrate? And this case is a great example because there was a document that implied that threat that I just described, which is, if you employ this subcontractor, we’ll take industrial action. But there was no evidence that that agreement was taken up or acted at the time.

Okay. Yeah. So, there’s no reciprocal action that shows that yes, it’s true the subcontractor didn’t come on site, but there’s nothing to show that it was the threat that caused that to happen. There was a really interesting side bits of information that occurred where the project manager or supervisor, whoever it was, tried to get the subcontractor on a union EA and hoped that would fix it. So, there’s a whole lot of facts which all suggest there was a collusive relationship. But as the high court said, “Unless you can demonstrate evidence of explicit reciprocity, you cannot argue secondary boycotting, because you can’t agitate an arrangement unless you can prove that there’s offer in acceptance effectively.”

Tom Daly: Which is a big problem in this industry because that doesn’t happen?

Andrew Douglas: Yeah. And it just shows what a complete nonsense the provision is, because how do you control industrial relations, which has the most skilled litigant in the union involved in it? He knows exactly what the law and the rules are and expect to ever stop their misconduct!

Tom Daly: Yeah.

Andrew Douglas: So look, it’s the high court, it’s the right decision. It’s a good decision, but what it does say, the Section 45D provisions, they’re a nonsense, because you can never, ever succeed unless you have a unionist with half a brain who decides to document, and the other side is even more stupid and agrees to sign it.

Tom Daly: It’d be a rookie error.

Andrew Douglas: Yeah, rookie error. Rookie, rookie, yeah. Why don’t we, I thought that was, I put that case on ’cause I just thought we’re now right in the middle of enterprise agreement season, we’re heading towards 30 June. We are seeing a federal election coming, which means the likelihood of industrial action has always increased during that period of time because they understand that the press are hot to hear it, and nobody wants to have that particular fight.

So, how do you actually deal with the union during these times? Who’s doing that type of stuff? And the answer is the very same thing that you’ve always done, which is to use people taking videos of picket lines and behaviours. Make sure that you continue to test misconduct by the union, and then document, making contemporaneous notes. They’re all the things you’ve got to do, okay? But if you don’t record carefully what is happening, if you’re not taking contemporaneous notes, you can never satisfy the high court test. And therefore, you’ll be subjected to extortion of behaviour. Why don’t we go on with the case study?

Tom Daly: Right. So, “Evette struggled with Dan’s demeanour. He had been in the business for 30 years and spoke to her brusquely, at times saying things like, ‘You are too young to understand,’ while ignoring her complaints and requests for help. There were times when he was just plain rude.

Sam felt the same. Like Evette, he was new to the business, having been there for two years, and was young. He understood that the nature of the business was complex and that Dan seemed to know it all. But Dan would never stop to explain. He would give Sam a direction and expect him to follow it. When Sam failed, as he invariably did, Dan would roll his eyes and speak down to him. Sam felt isolated, unsupported, and hurt by the repetitive behaviour.

Gordon had worked with Dan for much longer. He was highly skilled and Dan most often turned to him for guidance. But Gordon felt burdened by the workload. Although he recognised it as a sign of trust, he was tired of Dan’s constant bellyaching about others and his refusal to train them. Gordon was ready to leave and was also weary of the ongoing,” weary? “Weary of the ongoing conflict between Dan and the others.

Evette had returned from parental leave after 12 months. After just four weeks back at work, she had had enough. Her child had suffered from croup?”

Croup, croup- Don’t know what that is, don’t want to know- Croup. “She had hardly slept. Her husband was on FIFO shifts, and she was falling apart. Everyone could tell.

Her role as an estimator, working directly with Dan’s team. Dan was disorganised, and too often, the documents Evette needed will come through the system late on Friday afternoon with a deadline for response early on Monday or Tuesday. Her job was Monday to Friday, but she often worked most weekends. She requested flexible work arrangements, three days a week, one of them from home, and no work on Fridays, while asserting her right to disconnect over the weekend. Dan and his boss discussed the flexible work request.

Dan’s boss, Karl, spoke with Evette and explained that the role was full-time, and Fridays were crucial for the team because all of the trades came together on that day to undertake reviews, assessments, and document management. Evette explained that it was impossible to work in the current environment. She felt that Dan was hostile, lazy, disorganised, and that working with him was detrimental to her well-being. Karl said he understood but emphasised that they really needed Evette, as she was brilliant at her job and irreplaceable.”

Andrew Douglas: Alright, so we sort of come to the questions from all that. Interesting case study. First one, .Okay. “Was it a proper refusal of a flexible work arrangement?” So the question is, she’s put in a written request for flexible work. They’ve done the next thing, which is the consultation process, which is their obligation, to go back and consult. And they’ve said during that consultation process, “Look it’s full time. The nature of the role involves a number of other people being present at a particular time to provide final instructions, so the Friday is not there. And more importantly, there is no particular attribute that you relate the flexible work to, it’s just that she didn’t like working with Dan.”

Tom Daly: Yep.

Andrew Douglas: Now, that’s a nice way of what they said and what they also said is, “You’re invaluable and we need you.” So the first issue is, there was a request for flexible work. Was it in process? Had they dealt with it appropriately? So, the stages has got to, yes they did. Because they haven’t reached a stage where they write back refusing, but the stage you’re at is consultation. The next stage would be to write back and refuse. So, at the moment, there has not been a completion of the process, so in process terms, what they’ve done is fine, okay?

Tom Daly: Right.

Andrew Douglas: The second issue really is, is does she have an entitlement to flexible work based on the elements of which she would seek to do flexible work?

Tom Daly: Yep.

Andrew Douglas: She’s not saying that, she’s saying she can’t work with Dan.

Tom Daly: Yeah.

Andrew Douglas: Now she does, she has caring responsibility, she has a whole lot of things she can build a flexible work around. But they’re saying, and they’re quote properly saying, “This is a full-time job. It has these limitations that sit upon it.” I think they’re okay.

Tom Daly: Right.

Andrew Douglas: Okay? They’re okay with the refusal, not okay with their behaviour.

Tom Daly: Okay.

Andrew Douglas: So, let’s go to the second question.

Tom Daly: “Would Evette have a discrimination claim? If yes or no, what actions should the business have taken given their observations of her, think Bourke v Suncorp?”

Andrew Douglas: Yeah. So, Bourke and Suncorp is a 2015 case that said that, and this a general protections claim that “The obligations at law now arose when a reasonable person would observe someone through the obligations to monitor health under safety law, that they were not fit for their work, or that they pose a risk of safety for their work.” So here, everybody knew exactly what was going on with Evette. They knew she was falling apart.

Tom Daly: Yep.

Andrew Douglas: So, her protected attributes were obviously, she had caring responsibilities, and it was impacting and damaging her, okay?

Tom Daly: Yep.

Andrew Douglas: The second one is it’s unquestionable, she had some sort of mental health issues that were occurring. So, there’s two attributes which required reasonable adjustments.

Tom Daly: Yep.

Andrew Douglas: The reasonable adjustments aren’t hard, are they? One of them is stopping Dan!

Tom Daly: Yeah.

Andrew Douglas: You know the big issue here is they’ve not managed Dan.

Tom Daly: Yeah, his behaviour is quite egregious.

Andrew Douglas: Yeah, and causative for what’s occurred here. So, in some ways here, they don’t even have to make reasonable adjustments, they just have to stop the bad behaviour. If they stop the bad behaviour, I think it would work. But even if they said, “Okay, we need to do more to actually meet because she’s now damaged, it may be providing, talking to her about the time she actually needs, and making sure that work only goes through at particular times.” It may be providing her with assistance along the line until the disability that she now has ceases to exist. So, there are reasonable adjustments that need to be made, and there is undoubtedly the risk of discrimination. It’s just not the best claim she could bring, is it?

Tom Daly: Yeah, so what you’re saying is because she’s put in this request, because she wants to escape Dan, not because she has any these other valid reason.

Andrew Douglas: No! But for discrimination law, she does have protect attributes, she is damaged, so she does have a harm, she does have caring responsibilities. She’s saying that the way they are treating her through Dan as their agent is causing her harm and treating her adversely because of that. In Victoria where the law is very clear, just as the adverse treatment. She’s up and running in other territories where you’ve got to show detriment and a comparative study, she’s still going all right for discrimination. The problem is, it’s a tough claim. Okay? And it’s a tough claim because she’s the person who has to prove the case. Whereas in a general protections claim, once she raises it, demonstrates it, the risk moves over the employer and the employer has to prove.

Tom Daly: Yep.

Andrew Douglas: So, this is a perfect general protections claim for her.

Tom Daly: Okay.

Andrew Douglas: Even though she’s currently employed, she still has a capacity with it. So, were there any other safety law breaches in this, Tom?

Tom Daly: Well, I think in this one, there’s a clear safety risk, psychological hazard to her, which you know, is evident to everyone, she’s falling apart as .

Andrew Douglas: So, let’s do it just to start off one at a time. So, there’s a primary duty breaches and it’s not a safe work environment. There is a failure to monitor health correctly and to intervene.

Tom Daly: Yep.

Andrew Douglas: So, we’ve got primary duty breaches, but the fact is, they do know and-

Tom Daly: Is that in respect of Dan?

Andrew Douglas: Well that’s

Tom Daly: Failure to stop Dan.

Andrew Douglas: Yeah, but Dan’s the agent of the organisation, so at the moment, they’re both the same, if that makes sense.

Tom Daly: Right, okay, yep.

Andrew Douglas: Dan hasn’t been stopped, so Dan doesn’t go quite as badly as the business, the businesses on notice have had bad Dan is, and it does nothing about it, so it’s moving towards reckless endangerment. And would they be prosecuted, the chances in this scenario being prosecuted in Victoria at the moment? Very high. Pretty high in Queensland. And reasonably high in South Australia and New South Wales, so yeah, I think, there’s obvious safety breaches. What happens if Karl commissioned an investigation . I bet Andrew’s TeleProperty ’cause I’m a bit old and forget that.

Tom Daly: Yeah.

Andrew Douglas: Tom’s actually playing with me now. “If Karl commissioned an investigation or review and found all the above was true, would they be able to lawfully dismiss?”

Tom Daly: Yeah, I think so. I think once they investigated what’s going on and discovered that Dan’s wrongdoing, and the effect that it’s having on employees such as Evette, that would have strong grounds for a dismissal-

Andrew Douglas: Look it’s, this is less than the other case, case that we looked at before, isn’t it? Okay? Remember we looked at case around what you can do in a toxic environment, and all that type of stuff. And remember, you and I chatted earlier, and you said to me, you said, “Enough!” Is it enough-

Tom Daly: Oh yeah.

Andrew Douglas: For a valid reason? And I think, I agree with you, I think it’s enough but it’s borderline, but it does show what the responsibility on the business is to intervene, because all the other causes of action are alive. So, I think once you’ve got a valid reason, then you’re often to determine, what is the process? We don’t know the process. But yeah, I think an investigation would demonstrate there’s enough there to determine that.

Tom Daly: “Was Evette right to claim she could disconnect? Her contract was paid above Award rates and stated she must work such extra reasonable hours to undertake the work.”

Andrew Douglas: So, can we just start there, now the right to disconnect is a funny text, isn’t it? Because what if she is-

Tom Daly: Shifting Or something-

Andrew Douglas: Yeah, it’s some sort of thing. You don’t have a right to disconnect. What you have is if you resist being called out of hours or asked to work out of hours, then if someone treats you adversely as a result of your refusal, you have a claim. So, it’s not you have a right to disconnect. But the law says if there is a good business basis for you having to stay connected, and the process around is reasonable and fair.

Tom Daly: And you have to justify your refusal.

Andrew Douglas: Then you have to justify your refusal.

Tom Daly: Right.

Andrew Douglas: The answer is, she has an argument to say, “Look, I’m being asked to do things that are unreasonable. And that’s because of Dan’s incompetence, and I should have more control over my life.” But it’s untested because she hasn’t refused yet, so the adverse action argument doesn’t kick in.

Tom Daly: So, is it unreasonable because Dan is providing the work so late on the week on Friday-

Andrew Douglas: Yeah, it is, it is. So, I think she has a right to say no, and she would be successful if she did say no because the misconduct of Dan. And finally, “Would Evette have a good worker’s compensation claim?” Every single hour of the day and night. She

Tom Daly: Twice on Sundays.

Andrew Douglas: Twice on Sundays. Most of this goes under the subjective tests, so in other words, she experienced behaviour that was bad, she wins, that’s it. So yeah, she’d have an excellent workers’ comp claim. So, fun case study Tom, and well done for just jumping in at the last minute!

Tom Daly: Well, it’s showbiz.

Andrew Douglas: We’ll see you the same time next meeting, see you later, buh-bye.