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Friday Workplace Briefing

When the Union Comes Knocking – What Are the Employer’s Rights?

In this week’s Friday Workplace Briefing, Andrew and Kim discuss employers’ rights and obligations when the Union comes knocking.

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About the Hosts

Managing Principal - Victoria

Principal Lawyer - Head of Workplace Relations

Episode Transcript

Andrew Douglas: Look, I want to raise rights of entry.

Kim McLagan: Yeah.

Andrew Douglas: Partly because I don’t think too many weeks go by when I don’t get somebody ring up and say, look, the union have just turned up at site. It’s less than 24 hours of notice.

Kim McLagan: Yeah.

Andrew Douglas: They’ve come with a notice, I don’t quite understand what it says. And I ask the first question, well, is it a safety entry, or is it a fair work entry? And it’s usually a fair work entry, which means it’s unlawful because it’s less than 24 hours.

Kim McLagan: Yeah.

Andrew Douglas: But the one I want to concentrate today is the safety one, ’cause that doesn’t require the giving of notice.

So if we come to this case, Riley was a union organiser with a permit who came on site, came onto a building construction site, an inherently dangerous building construction site. They required him to sign in, not a big job. They required him to be inducted, not a particularly big job. And he was given safety directions about what he could and couldn’t do, which he ignored, including walking into pits, which is very dangerous.

The original case came up on two points. All the things he wouldn’t do, which were safety related, and secondly, that he wouldn’t allow someone to accompany him. And at first instance they said, yes, you should be able to accompany him, and a much more thoughtful full bench to the federal court said, I think accompanying him can mean supervised and seen, he was certainly accompanied.

But union official is like anybody else who, when they come on site, must be safe. The organisation has an obligation to ensure they’re safe. And given that Riley could come up with no good decision for breaching the law in the manner in which he did, it was lawful and reasonable. And he’s suffered penalties as a result of it.

Kim McLagan: Well, what I like about this case is he appealed the original decision.

Andrew Douglas: Yeah.

Kim McLagan: Because the accompaniment argument. But then the full court increased the fines.

Andrew Douglas: They did increase the fine, which is always a nice thing to do.

Can I, what we’re going to do, we’re actually going to run a morning session on this. So I’ve got a very senior practitioner in OHS land who deals with this type of stuff all the time.

Next week we’ll come with a bit of a flyer and tell you when it’s on. But what we want to do next week is to give you, not next week, where we do the seminar, is to give you a bit of a cheat sheet on what to do and to explain what to do when people turn up with what particular notice. And particularly for safety is, what level of detail, ’cause they’re required to disclose the nature=

Kim McLagan: Of the suspected-

Andrew Douglas: Of the suspected

Kim McLagan: Contravention, yeah.

Andrew Douglas: Breach. And they never do. So they’re doing it at the moment entering sites on psychological hazards issues where they say, look, a number of our members are complaining they’re being bullied. Well, does that mean you just walk around the whole site chatting to people?

Kim McLagan: Yeah, exactly.

Andrew Douglas: No it doesn’t. So what is the level of detail on this and really nice case law around this as well. So in that morning session, we’ll go through nearly all of you have the risk of a union turning up and knocking on your door.

For those who have it once every two or three years, it’s actually a bit more frightening than those who had it every week, ’cause you built up a skill and a strategy that sits around it. So, we’ll put it out.

Kim McLagan: Good.

Andrew Douglas: And you come along, it’d be great.

Kim McLagan: Good.

Andrew Douglas: All right, let’s go on now to our case study.

Kim McLagan: We’ll need to skip through a couple of slides, I think, Sophie.

Andrew Douglas: Did I jump one, did I?

Kim McLagan: Oh no, that’s all right, we’re done.

Andrew Douglas: We’re done, here we go.

Kim McLagan: Okay.

Andrew Douglas: You’re going to read.

Kim McLagan: I will.

Merle was getting restless. She was the head of maintenance on night shift and was bored. It was the night before Christmas and it was common practise for employees to leave the plant and go over to their cars in the city council underground car park. She said to her team she would bring them a present. She left the premises, walked over to her car and took out her Eski full of beer. As she started to walk back to work, she slipped on the gutter across the road from work and fell, hurting her left knee.

The doctor later diagnosed a small tear in her medial cartilage. The pain in her knee didn’t stop Merle. She arrived in the crib room with the Eski full of beers and they drank the two slabs of beer between the four of them.

Her role was one of the designated roles which required employees to be zero alcohol level when at work.

Good on you Merle.

The factory manager arrived at 4:00 AM, smelled the alcohol, spoke to the crew and realised they were all drunk. All admitted they’d been drinking with wild Christmas smiles. He laughed but explained they all had to head home and he arranged taxis.

The following day Merle put in a workers’ compensation claim. Neil, the HR manager, advised the executive to take no action until the claim was rejected against Merle. The other three maintenance workers were spoken to on Boxing Day and received final warnings. Merle returned to work two months later and a discipline meeting was arranged, at the meeting her employment was summarily terminated.


Andrew Douglas: All right, we’re good. There’s a lot of questions here, and we are going to take a bit of time because this case sits right across two or three of the matters we’re dealing with.

So the first question, “Was it right to delay the discipline meeting, given the gravity of the wrongdoing, and did the delay make the dismissal not a valid reason and could Merle seek reinstatement?”

So there’s a lot there in one go.

Kim McLagan: Yeah.

Andrew Douglas: So let’s just go back to the doctrine of waiver.

Kim McLagan: Okay.

Andrew Douglas: Okay. Two months, so these, and six pays. The injury has nothing to do at all with the misconduct. So the issue is, if there was a valid reason to terminate, is there any reason why they couldn’t proceed with the termination, irrespective to the person going on leave?

Kim McLagan: Yeah.

Andrew Douglas: So let’s start with that.

At the time which the person was drinking, they were clearly aware they were going to be involved in disciplinary process. Abundantly clear case law, it doesn’t matter whether a person goes on sick leave or workers’ compensation. Anything.

Once you’ve started disciplinary process, you’re entitled to continue that process. So the first part is, yes, they could continue the process. There was no proper reason to stop it.

Does workers’ compensation stop it? No, workers’ compensation doesn’t. In fact, if there is serious misconduct that has occurred, you can proceed with and terminate a person.

Kim McLagan: Yes.

Andrew Douglas: But you would definitely want to bring your insurer along for the ride and explain why you’re doing it.

Kim McLagan: Yeah.

Andrew Douglas: Okay?

Kim McLagan: Yes.

Andrew Douglas: But to not do it, without a reason that goes to the injury, such as the person is in a coma. Does that make sense?

Kim McLagan: Yeah.

Andrew Douglas: But this is a person with a knee injury, not a brain injury.

Kim McLagan: Well, that’s it. And I must say a lot of our clients do delay disciplinary proceedings, particularly when there’s a mental health injury. I get that.

But we provide additional support for them, extra time, that sort of thing. But she’s got a knee injury. That doesn’t stop her from-

Andrew Douglas: No, no, no.

Kim McLagan: Participating in any-

Andrew Douglas: And even in those circumstances what we do is we give her a few extra days-

Kim McLagan: Yeah.

Andrew Douglas: We’d offer a range of support around it.

Kim McLagan: Yeah.

Andrew Douglas: But when serious misconduct happens, you cannot do something that condones or permits or acknowledges it’s okay.

Kim McLagan: Yeah.

Andrew Douglas: And particularly where you’ve dealt with three others.

Kim McLagan: Mm.

Kim McLagan: Then there is clear condemnation, ’cause I go, well, you three I’m going to punish you. You-

Kim McLagan: Yeah.

Andrew Douglas: No, no, you put in a workers’ comp claim.

Kim McLagan: Yeah.

Andrew Douglas: The only connection between the delay is the person putting the claim and a solicitor on the other side would argue you’re too scared that by having a go at it the claim would be accepted. Okay, so that’s the only real reason-

Kim McLagan: Yeah.

Andrew Douglas: That you can put to it. So yeah, it’s no longer a valid reason. Waiver applies.

Kim McLagan: Yeah.

Andrew Douglas: You lose your rights, you’d be able to discipline but you certainly wouldn’t be able to terminate.

Kim McLagan: Mm. Yep.

Andrew Douglas: So that’s that one done. Cool, we got through one quickly, I thought that was going to take a while. At the unfair dismissal hearing, would they have to produce expert evidence of intoxication under regulation 107? And the answer is no, ’cause it’s zero. It was a trick question.

Kim McLagan: Zero tolerance policy.

Andrew Douglas: Yeah.

Kim McLagan: That’s the answer.

Andrew Douglas: But can I just say, doesn’t matter what you’re going to do, if you’re in an environment which has large plant and equipment, you should have drug and alcohol testing as a mandatory.

Kim McLagan: Yeah.

Andrew Douglas: Okay. For a show cause mandatory. It gets over all these problems. Not hard, it sits in a room. You go like this, blow in this, then you go and get them verified. It’s not hard, okay? To not have it means you always run this risk.

Even if I was running the hearing at unfair dismissal, I would call a doctor to say, or someone to say, look, there is an acknowledged consumption of this level during this period of time. At the time which you dealt with this person, they would be at this stage ’cause it would establish the gravity. It would go to gravity.

Kim McLagan: Yeah.

Andrew Douglas: So if the person was 0.2, for instance, then every court would say definitely summary due, you’re there looking over, you could have been called to go and work on a machine. Too dangerous, okay?

Kim McLagan: Okay, so would Merle’s work cover claim be accepted? Look, this could go either way.

Andrew Douglas: Yeah.

Kim McLagan: So we’re assuming, I’m assuming, that it happened outside of work hours.

Andrew Douglas: Did happen in the gutter, no, no, inside working hours.

Kim McLagan: Oh, inside working hours?

Andrew Douglas: No, it’s inside working hours.

Kim McLagan: Ah. Okay.

Andrew Douglas: No, it’s inside working hours.

Kim McLagan: Right. Okay.

Andrew Douglas: Not after, no, this is, she went and got them and they’re still working when they were drinking.

Kim McLagan: Righty oh. Okay. So there’s a defence under the Act willful or deliberate conduct.

Andrew Douglas: Yeah.

Kim McLagan: That contributed to the injury. But her accident occurred before she started drinking, not after, so if it had happened after she started drinking and was under the influence.

Andrew Douglas: Yeah, so the argument-

Kim McLagan: I think that argument, that defence would be more alive.

Andrew Douglas: Yeah, so what you’d be arguing is willful and deliberate. They went and did something which placed themself at risk by carrying a large Eski full of alcohol. Which means they’re unbalanced, that was difficult.

And what they were doing was inherently wrong. And therefore the manner in what they did happened because they were being willful and deliberate in doing a wrongdoing. I don’t think it would work. I think the claim would be accepted.

Kim McLagan: Yeah. Most likely.

Andrew Douglas: Now can I just, for all of you who have external car parks, this is a warning, okay? And the reason I’m doing it is a number of our clients do rely on street parking, they do rely on off street parking.

Kim McLagan: Yeah.

Andrew Douglas: Which is not owned and controlled by them. People who are allowed to go to their cars during that period of time and injure themself, will almost always have a compensable claim.

Kim McLagan: Mm.

Andrew Douglas: And it’s uncontrolled. You dunno what they’re doing, okay? You dunno whether they’re going to go and shoot up some heroin when they go to their car, you dunno, ’cause they’re outside of work.

All right, the next question.

Was the practice for allowing workers to leave the site, go across the road into an uncontrolled car park unsafe? And if so, did it breach safety law, particularly how was it uncontrolled environment, no supervision and lack of business related activity?

Kim McLagan: I think you just answered that question early, haven’t we?

Andrew Douglas: Well, I just want to say to you, just imagine a safety regulator is called in. So let’s just say, Merle got a call out from one of the operations crew to fix an Orba, and took off the lid, didn’t isolate it, put her arm in and got drawn into the Orba. Terrible injury or death. Bad luck to Merle for drinking, okay?

But, what would the safety regulators say? The safety regulator would go, “So they were allowed to leave the plant? That was a usual thing? You had no control over what they did? You had no, there’s no method of checking what people brought in and out of work?”

Can you see what I’m saying? So when I put an injury, there you go, definitely the safety regulator would prosecute and they’d prosecute the organisation, it be reckless endangerment, absolutely, no doubt at all, if you go and allow people to go out to their car, whether it’s onsite or offsite, and there’s no method of supervising what they’re bringing in or not bringing into a site, you’ve got some risk.

But if you’re allowing them definitely to go offsite, so that mightn’t be a car park, it could be a pub.

Kim McLagan: Yeah.

Andrew Douglas: It could be to a dealer in the street, it could be whatever.

At that stage you are saying, they can do something that is inherently dangerous.

And if you don’t have a method of controlling that, you’ve got the first element of reckless endangerment. There could be a risk of serious injury. And then you’ve got to say, are they indifferent to it? Absolutely. So it’s reckless endangerment.

So I’m not saying you would be prosecuted if you were Merle’s employer, but if someone was injured, you would definitely, and that would make the prosecution, very serious prosecution because in this case people were able to bring large quantities of alcohol on site, drink it and go and work. Fatal.

All right, last question.

Kim McLagan: Would Merle, oh sorry.

Andrew Douglas: You go.

Kim McLagan: Would Merle have a strong general protections or discrimination claim alleging termination for lawful injury, making a workers’ compensation claim under the act?

Andrew Douglas: Okay, so there’s a discrimination provision under all workers’ compensation legislation, WIC’s Victorian, which says you can’t treat someone adversely for making a claim, threatening to make a claim.

Kim McLagan: Yeah. Yep.

Andrew Douglas: Okay? So Merle’s arguing that, also arguing under discrimination law, look, I’ve got an injury, injury’s work related and you’re terminating me ’cause I’m injured.

And under general protections, same thing again, workplace right injury, I’m protected by discrimination law. Different under discrimination law, reverse onus of proof. Same reverse onus under workers’ comp legislation.

Kim McLagan: And can I just say, she’s been given the opportunity to bring the claim because of the delay that was caused after she engaged in the misconduct.

Andrew Douglas: Yeah.

Kim McLagan: Had they terminated her at the time, obviously it would’ve eliminated any argument.

Andrew Douglas: Yeah. Well no, that’s just still could have said she suffered an injury and I was going to make a claim. So yeah.

Kim McLagan: Oh okay.

Andrew Douglas: But yeah, it would’ve limited, I guess the really big issue here is, the predominant reason for sacking her is ’cause she went outside, bought alcohol and got everyone drunk.

Kim McLagan: Yeah. Everyone drunk, yeah.

Andrew Douglas: So I don’t think she’d have any success at all.

Kim McLagan: No.

Andrew Douglas: Okay? But as Kim says, the delay in bringing it, starts to say, look, not a valid reason under unfair dismissal. But what are the reasons you are sacking someone, as you say, maybe it’s ’cause of the injury, maybe it’s ’cause of something else and this has now become a good reason to blame.

Kim McLagan: Yeah.

Andrew Douglas: So I agree with you on that basis.

So I guess what I want to bring out today, what I really want to push through today is when something bad happens, deal with it straight away. There’s no reason for delay.

Kim McLagan: No.

Andrew Douglas: Unless the person’s in a coma, or has some significant brain damage or brain impact on their capacity to think, okay. But if someone has a mental health claim, and they put in a mental health claim, look, I understand that. Be respectful of it. Give them time, give them support.

Kim McLagan: Yeah.

Andrew Douglas: But still deal with the issue, ’cause you have two different audiences. You have a judicial audience which we’re coming to, who will apply waiver.

Kim McLagan: Yeah.

Andrew Douglas: But you’ve got an internal audience who say, how come that person, nothing’s happened to that person and they’ve done something terrible? And what it says is, well, and that’s how condemnation works, if it’s okay for that person, then it’s okay for me.

Kim McLagan: Yeah, exactly.

Andrew Douglas: And that becomes a problem ’cause when I go to sack Kim who does the same as the other person, Kim goes, but you’ve done nothing about the other person. And if I come before a commission, what I didn’t do with the other person, is a basis for Kim not being punished.

Kim McLagan: Yeah.

Andrew Douglas: Okay? ‘Cause you can’t punish what you permit.

Kim McLagan: Mm.

Andrew Douglas: All right guys, we’re a bit quicker than we usually are today. So we’ve raced through that a bit. But it’s sort of good. And remember we will have this great session coming up in a few weeks’ time.

Kim McLagan: Yep.

Andrew Douglas: Dealing with rights of entry. Until next week, which I think it’ll be Nina again next week.

Kim McLagan: Should be Nina back next week.

Andrew Douglas: Kim will escape.

Kim McLagan: If all goes well.

Andrew Douglas: Lovely to see you, thumbs up, see you later.

Kim McLagan: See ya.

Andrew Douglas: Bye-bye.

Kim McLagan: Bye.

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