Andrew Douglas: Can I get to our major topic and I want to talk about it first a bit, Nina. And then we can go back and we can talk about the case we want to talk about. You and I have acted for large labour hire providers and large users of labour hire providers. And when we talk to people, everyone sees it as a method of risk mitigation.

Nina Hoang: Yep.

Andrew Douglas: And before they do that, we go and pull up the contract that exists between them and you and I have worked on these contracts for so long. And we look at the contract and we say, “Well, the contract creates no risk mitigation.” So there’s no indemnity provisions. And remember, indemnity provisions after the changes to legislation, which say someone else will pay a fine, they’re unlawful.

Nina Hoang: Yep.

Andrew Douglas: We still find those, by the way, despite.

Nina Hoang: They just won’t have any effect. Yeah,

Andrew Douglas: Yeah, Well they’re actually criminal in nature, so they might have more than that. They may have an effect on you for trying to enter into them.

Nina Hoang: Oh but as in like, just ’cause you have it, it doesn’t mean it’s going to have any effect.

Andrew Douglas: But actually the obligations around safety and labour hire agreements must be explicit. They can’t be proforma agreements. They relate to the actual site.

Nina Hoang: Yeah, it has to be tailored.

Andrew Douglas: And that’s we see is, is exactly the same agreement every single time. So it needs to be tailored to the site. It needs to be clear about who has obligations and what are those obligations in relation to the obligations of safety. Who is going to educate them in relation to the known risks? Who’s going to demonstrate their competence? Now remember, the labour hire person has to be able to do that. But guess what? The principal, the host has to be satisfied that when that person comes onto site, that they’re satisfied that they’re competent and respect the risks they’re going to face. So there are two layers of protection that exists. So having a labour hire doesn’t take away the host’s responsibility. It actually increases their liability.

Nina Hoang: Yeah.

Andrew Douglas: And for the labour hirer, ’cause that’s all they do, they have this liability they can’t shed or devolve. They must be satisfied that their workers, when they come into the place, are safe to do the work that’s being undertaken. And so we come to AH vision.

Nina Hoang: Yeah, and also this has been replicated in the new changes in the legislation.

Andrew Douglas: It has, it has.

Nina Hoang: Yeah.

Andrew Douglas: And look, DPP and age vision, there was an earlier case for a fruit grower, which was for a $750,000 fine. Age vision was, the defendant in this case was the labour hire.

Nina Hoang: Yes, that’s right.

Andrew Douglas: So the fruit business had trucks that you could stand on for picking.

Nina Hoang: Yeah, like within raised platforms.

Andrew Douglas: But not while over moving. It was to stand on so that you can pick.

Nina Hoang: Yeah.

Andrew Douglas: And not surprisingly, people over a period of time started standing on them to get to the site because farms are big places, and why wouldn’t you go there anyway?

Nina Hoang: Yeah. Yeah well they were just using it as like a way, they sat on it, I think as it was travelling between sites. Yeah.

Andrew Douglas: And the fruit growing business had made it very clear and explicit, you’re not to sit on to travel.

Nina Hoang: Yeah.

Andrew Douglas: Now they end up, getting fined $750,000 ’cause the court says, “Well that’s still not a safe system.”

Nina Hoang: Yeah, ’cause they just told them no, but didn’t actually follow off.

Andrew Douglas: Yeah, and so there’s a level of condemnation and awareness that was happening. But for the labour hire provider, they were also aware that people were utilising this and they did nothing about it. And they ended up with, I think it was a $400,000 fund.

Nina Hoang: Yeah, that’s right.

Andrew Douglas: So the cases are very simple. You know, the facts in the case are uncomplicated, but once again show the principal in this case got a massive fine. It was their equipment,

Nina Hoang: Yep.

Andrew Douglas: Their driver.

Nina Hoang: They had management and control.

Andrew Douglas: And they had management and control. So they’re always going to get a bigger fine. But what’s important here is, I’m sure the fruit grower didn’t think that if a person from the labour hire got killed, it would be their responsibility. And they found out they got the second largest fine in Victoria last year.

Nina Hoang: Mm.

Andrew Douglas: But the labour hire person never thought, it was their responsibility to be satisfied of the safe travelling of their people around the farm. And they were aware of this, but they did no assessment of themself. And so they found themself liable for $400,000. And can I say, that affects their licence and a whole lot of other issues that may come out of it. So I think for the two of us, we really wanted to concentrate on this. There’s a stage of engagement, which is the contract, which must clearly sit out. Then there are policies and procedures on both sides. Then there is a competence testing process that must sit on both sides. And then both sides must have an individuation process.

Nina Hoang: Yeah. It has to be monitored.

Andrew Douglas: Yeah. The checks that it actually is happening. And on this case, none of each.

Nina Hoang: Yeah, and adapting if it’s not, you know?

Andrew Douglas: That’s right.

Nina Hoang: Don’t just note the issue and then leave it.

Andrew Douglas: That’s right. Because remember, the monitoring obligation that sits in a safety system is, okay, you’ve got a plan, you’ve got a process, there’s training. Okay, there’s supervisors this and the supervisors meant to be making it happening. But how do I test that’s really happening? None of that occurred. And that’s where the big fines are.

Nina Hoang: Yep.

Andrew Douglas: That’s where the big fines are. And can I just say, once again, this is a case which in two or three years time, I would say the directors would be in big trouble. And I would say, to be candid with you, they’re very lucky not to be charged with reckless endangerment.

Nina Hoang: Yeah.

Andrew Douglas: Very, very lucky.

Nina Hoang: I agree.

Andrew Douglas: Okay. And in 10 years time, very lucky not to be charged with industrial manslaughter ’cause that’s the way it’s going. I think we could head over to the case study.

Nina Hoang: Yeah. All right. They were two casuals down. Nico didn’t have a lot of time. As the site supervisor, he needed two more workers on the concreting gang to push up another floor in the next few days. He rang Harvey Wolfstein, the owner of Loose Labour Hire.

Andrew Douglas: Sorry, I was on the plane. I was bored. I wanted to put in some bad names.

Nina Hoang: Clearly no creative. Seeking two labourers with concreting experience, particularly with slabs. Harvey had several Pacific Islanders with good experience, but he was aware they had struggled on sites before because of their devout religious beliefs. He also knew that Nico’s workers felt they were above the law. They were more than-

Andrew Douglas: You don’t know that, do you? That’s a Steven Seagal movie, Nico “Above the Law.”

Nina Hoang: No I can’t.

Andrew Douglas: I thought I’d say on the same thing with Steven Seagal and with Harvey Weinstein, so.

Nina Hoang: And several of Harvey’s labour hire workers had refused to work on Nico’s site. Harvey sent two employees, Kale and Laki. Laki was small, a little effeminate and vulnerable. Kale was tall, powerfully built, but very proper. He wore his religion on his sleeve.

Within two hours, Nico called Laki “The Lacky” and treated him like some submissive female servant. Kale, they called “Old King Kale” and mocked his obvious religious reserve. At morning smoko, Nico dropped by and asked if they had been inducted. Both said yes, but both clearly distressed, complained about their treatment. Nico chuckled and said it was all banter, well-meaning, and to relax. They said they would try. They rang Harvey together and explained the same problem. He told them to hack it out, as he had no other work.

After several days, Laki was broken. It had gotten worse. He went to see a doctor for his stress and she gave him a week off. Kale, now alone, started to react angrily. He was a powerful man. After being teased all afternoon, he grabbed one of his detractors, lifted him up by the heels and dangled him from the 10 story concrete slab. Nico terminated his employment summarily.

Laki was struggling at home. He felt scared to go back, couldn’t sleep, and felt depressed. On his way to the doctor, he was talking to his wife. She kept asking him why he was so distracted. And eventually, he explained how he was being treated at work. As he spoke to her, he was crying and recounting the last taunt of being a good little island girl. His mind couldn’t shake the looks on their faces and he felt sad and ashamed. Distracted and obsessed with his thoughts, he walked in front of a large truck and was struck and killed. Oh, it got morbid.

Andrew Douglas: Yeah, can I just say,

Nina Hoang: I did not read the end.

Andrew Douglas: Nico chucked him off the site. But that is the defective summary dismissal ’cause obviously Nico was not his direct employee. So that’s a slight confection in my mistake, mind.

Nina Hoang: I thought Nico was his employer.

Andrew Douglas: No, no, no. That’s the problem. Harvey’s employee. Harvey’s from the labour hire business. Nico was with them.

Nina Hoang: Oh, okay. Okay.

Andrew Douglas: So just assume that my problem has a bit of a fault in the middle of it. But nonetheless, the effect of it is, he was no longer allowed on site.

Nina Hoang: Yep. So was there any safety breach, entitling prosecution, and against who?

Andrew Douglas: Well there was a whole lot of safety breaches there, wasn’t there? I mean if we look at the psychological hazards, which we’ve been talking about all morning, there are unquestionably breaches of protected attributes. There’s everything that could go on there, so.

Nina Hoang: Poor support as well. ‘Cause they’ve raised it and then both of them have ignored it.

Andrew Douglas: So if we talk about safety, what are the breaches, what are the notions? Nico had knowledge of it. Harvey had knowledge, okay?

Nina Hoang: Yeah.

Andrew Douglas: They had knowledge of something which they both knew because of the history.

Nina Hoang: Yep.

Andrew Douglas: Had a risk of serious injury.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So they’re indifferent to it.

Nina Hoang: Yeah.

Andrew Douglas: So I think they’re both looking down the gun at reckless endangerment. Both are primary duty breaches without a doubt.

Nina Hoang: Yes.

Andrew Douglas: But probably reckless endangerment. Nico’s involvement, engagement of what was occurring make him, potentially, personally liable for reckless endangerment as well. Harvey’s failure to act I think is probably a section 144 breach in Victoria, or a due diligence breach. So maybe there’s an official breach there as well. There’s not an industrial manslaughter given the speed at which it happened, but it’s on the edge.

Nina Hoang: And then the other people engaging in the behaviour would also be section 25 breaches as well.

Andrew Douglas: Yeah, personal liability. So under the WHS, same thing with section 25 in Victoria. But that personal liability around exercising reasonable care.

Nina Hoang: For others.

Andrew Douglas: Yeah. To prevent injury to yourself or others. So there’s a lot there, isn’t there? A whole lot of claims that are there. If Laki was not struck and killed, would he have a compensable claim?

Nina Hoang: Oh yeah. Like a workers’ compensation claim.

Andrew Douglas: Yeah, yeah, yeah.

Nina Hoang: Yes.

Andrew Douglas: Now look, just going back to safety, just say there was enough there. There’s definitely a breach of duty towards labour.

Nina Hoang: Yes.

Andrew Douglas: It’s close to negligent, but just say it was a higher level of negligence. So you only got the first two elements of industrial manslaughter, but he wasn’t at work. Does that mean…

Nina Hoang: No, industrial manslaughter doesn’t matter if you’re at work or not.

Andrew Douglas: That’s right, doesn’t it? So I don’t think it’s enough to get there. But the fact that he didn’t die at work.

Nina Hoang: I think if it had been going on for a longer period of time and,

Andrew Douglas: A high level of awareness was impacted.

Nina Hoang: Yeah, then I think there’s a real risk of industrial manslaughter.

Andrew Douglas: Yeah, I just sort of say that because industrial manslaughter is the only one where the injury or death, well, it’s the only one that relates to injury or death, by the way. The rest are per se, liable whether there is an injury or not.

Nina Hoang: Yep.

Andrew Douglas: But it’s important in the circumstance that industrial manslaughter goes beyond the workplace.

Nina Hoang: But like, Laki would, definitely, have a workers’ comp claim.

Andrew Douglas: Yeah. Now that takes me to the next question is, would Loose Labour Hire have a good recovery action against Nico’s business in workers’ compensation?

Nina Hoang: I dunno, because they were also guilty of doing stuff.

Andrew Douglas: Well, it’s contribution in negligence. So recovery action in workers’ comp, so there would be a claim that is made. Actually it’s the other way around to be perfectly honest. It is the labour hire business that would have workers’ compensation claim.

Nina Hoang: Yep.

Andrew Douglas: And they would seek recovery against the public liability insurer,

Nina Hoang: Against the host employer.

Andrew Douglas: Of the host, okay? And what they have to prove is that Nico’s business had been negligent in some way. So they’d be right with that and Nico would point back and say, but you’ve also been, so that would reduce the level of recovery that could be made. But yeah, patent recovery claim, it would definitely be made.

Nina Hoang: Was there any discrimination or general protections claims for Laki and Kale?

Andrew Douglas: Kale, Yeah, there definitely was. I think you can’t miss it. There’s protected attributes under discrimination law, gender generally.

Nina Hoang: And also the way you look in Victoria.

Andrew Douglas: And the way you look in Victoria. That’s exactly right. Nowhere else. And of course, there is race as well.

Nina Hoang: Yep.

Andrew Douglas: So I would’ve thought that discrimination is a lay down mess there.

Nina Hoang: And religion as well.

Andrew Douglas: And religion as well.

Nina Hoang: Yeah.

Andrew Douglas: General protections, once you’ve got those, you are home, you’ve got a reverse onus. It’s easy. But this would be a discrimination claim, brought any day of the week. And can I say, it would be a massive claim.

Nina Hoang: But, so with kale grabbing someone and dangling from the 10 story concrete slab, obviously the termination was because of that.

Andrew Douglas: Yes.

Nina Hoang: So it wouldn’t be a general protections claim on, he wouldn’t win on that aspect.

Andrew Douglas: No.

Nina Hoang: That is serious misconduct.

Andrew Douglas: That’s serious misconduct, isn’t it? Let’s talk that through. So he took action as a result, so.

Nina Hoang: But it was because of what he was suffering at work.

Andrew Douglas: Yeah. Interesting. I reckon it’s a case that’d be worth running because I reckon a substantive part of what their mind is, is the issues that he’s raised repeatedly and went about his own self-help remedy, bad as it may be, but the actions he took were a result of their inaction.

Nina Hoang: Yeah, but they’re not firing him because of the other. I think because of the nature of what he did, like I think that would trump it. But how do you just say, sworn at people?

Andrew Douglas: Yeah.

Nina Hoang: I think you would have stronger grounds to win there.

Andrew Douglas: Yeah, so that’s reverse because you’re right, I’m willing to go along with that. General protections claim for, sorry, discrimination claim.

Nina Hoang: Yeah, discrimination claim. Yeah, definitely.

Andrew Douglas: Laki’s a winner on that.

Nina Hoang: Yeah.

Andrew Douglas: If kale didn’t hang him over the edge, could go there. General protections, don’t have to terminate. Certainly a discrimination, Claim constant.

Nina Hoang: Yep, yep.

Andrew Douglas: Certainly high general damages.

Nina Hoang: Yeah.

Andrew Douglas: Okay. In common law terms, would there be a dependency claim for Laki? Yes, there would be a good dependency claim ’cause it is causative. You can show the cause.

Nina Hoang: Yeah.

Andrew Douglas: Show negligence, cause, dependence claim by family. But you’re right, when I come back to it, general protection’s a claim for Kale.

Nina Hoang: Yeah because he can’t defend the fact that he almost killed someone.

Andrew Douglas: Why did I go in so hard and say there was? I’m a fool. I think that shows I didn’t read it before we came here, doesn’t it?

Nina Hoang: You wrote it.

Andrew Douglas: I know, but I have my weak moments.

Nina Hoang: Oh, it’s been a long week for us.

Andrew Douglas: Yeah, was Kale’s termination defensible? Well, the answer is, his termination was entitled to at any stage by the host.

Nina Hoang: Yeah.

Andrew Douglas: The issue was, his employment terminated by, and we don’t know that, by the labour hire. So at any stage you can say, “This person did something unsafe at work, I can stop them.” That would be under the contract.

Nina Hoang: Yeah.

Andrew Douglas: That would be possible. In both Kale and Laki’s contracts, they were instructed to comply with relevant policies and procedures. The bullying policy cast obligations on Nico’s business to prevent psychiatric injury of the type suffered by Laki and Kale. Do they have a claim based on psychiatric injury? So the question is,

Nina Hoang: That’s such a long question.

Andrew Douglas: Well no, it’s Alicia, okay?

Nina Hoang: Oh, okay.

Andrew Douglas: So no, you’re right. It’s a very long question. But I had to get Alicia’s case in there. So just imagine this, if there was an obligation to comply with the policy and for the labour process to confirm there would be compliance with those policies. Let’s forget about hanging over the edge, right? And let’s forget that Laki’s dead. If they were alive and that didn’t occur, I think there’s a great psychiatric damages case.

Nina Hoang: Yeah, that’s very much Alicia’s.

Andrew Douglas: So ow you know what Alicia’s vision in Australia is. It just, yes, was long, wasn’t it? It was long.

Nina Hoang: But we made it to the end.

Andrew Douglas: We made it to the end.

Nina Hoang: Yeah.

Andrew Douglas: Okay.

Nina Hoang: Give us a thumbs up. Thanks for joining.

Andrew Douglas: Yeah, thanks again. Cheers. Bye-bye.

Nina Hoang: Bye.