Andrew Douglas: And I think then we’re sort of going on to the

Monnette Samo: Main topic.

Andrew Douglas: We’re going on the main topic, aren’t we?

Monnette Samo: Yeah.

Andrew Douglas: Work from home, okay? A couple things. Here’s the questions on work from home. Can you request work from, well, anyone can request working from home. So yes, you can request it. Under the Clerks Award and the changes, nothing more has happened than an entitlement to request. There’s no other process that falls, no employer has to respond. It’s merely recognizing what is the state of play that anybody can request. Why is it doing it? Hard to know.

But what will happen in the Clerks Award is, it will flow down, as it always does, through all awards. And the idea is that is putting people on notice that they can. So, where would the authority to work from home come from? Well, it’s a big question, isn’t it? Because we all know since COVID that there is a need, if you want to, in most jobs which don’t require hands-on work, if you want to attract talent, you’re going to have to provide work which allows people to work from home from some time. We all think, “Oh, isn’t that good?” But we forget about the workers’ compensation risk.

We forget about the safety risks, all of which are alive because home has now become an uncontrolled workplace. So I’m not quite understanding why the president of the Fair Work Commission thought this was such a cunning plan, when you’ve got flexible work requests you can make. Why would you do this, when it has no effect other than to stimulate people to make requests and then to be met by silence? Don’t get it, but it’s going to happen, which means we’re going to get more. And then when we get to the place, well, what’s the legislative authority to allow to do it?

And the only legislative slurry is flexible work requests under section 65, which have six identifiable attributes that you’re allowed to do it. And overwhelmingly are not winning at the moment because most people are doing it because they want to be close to their family. I was actually chatting to a guy as we were looking through premises today whose PA, whose just brand new PA, rang up to work from home ’cause she got a new puppy. And he said to me ,

Monnette Samo: I mean, that would be nice.

Andrew Douglas: That would be nice. He said, “Section 65 doesn’t talk about new puppies and it does require you to work when you’re at home.” So that’s the funny thing, isn’t it? Flexible work requests aren’t, “I just go home and do bugger all.” They are, “I can work in a way which requires me to do the work I am required to do.” Same when I work from home. When I work from home, I still have to have the same output, and because I’m an award-based employee, I must work during the same hours.

Now, what’s good about the Clerks Award is it recognize the hours of work may vary a bit, and therefore the provisions of the award are applied more flexibly if you do. So that’s a good provision, if you want to use it. But what we’re seeing in flexible work requests now is an abundance of them, driven from all sorts of reasons, like “I’ve got a new dog,” and you wonder where we’re going to end up.

And I think the short answer is we haven’t quite seen the end of the road with this, but I want to be clear, when someone says “I want to work from home,” there is no authority that says you must do it. Your contract will always say your place of work is level 17, 130 Lawnsdale Street or such other reasonable place as directed by your employer, which can be working from home. But then it is a workplace.

Monnette Samo: Yep.

Andrew Douglas: And while people are being generous about, “Yeah, work from home,” what’s the layers of protection you have to make sure that person is safe when they’re at home? Remember we’ve got Hall’s case where the two mortgage brokers, the husband and wife lived together, and the husband killed the wife at home, and a common law claim was successful on the basis they knew what the risks were when they allowed that to happen.

We don’t seem to understand with the work from home, what are the cascading risks that come out at the bottom, nor do we have any of the controls that are in place to actually do that safely. And yet it is the continuous expectation of employees that they are able to do it. And yet as employers, we’re not managing it.

Monnette Samo: Yeah, right.

Andrew Douglas: So, we’re going to see this growth of one arm. Of one arm? Yeah, I suppose it is one arm. We’re going to see this growth of flexible work requests. When you don’t get them, we’re going to see general protections claims being, ’cause it was a reasonable basis of workplace, right?

We’re going to see a huge amount of litigation that sits around this. And the answer is “Have a clear policy.” Make sure when someone makes a request, you sit it against what is a flexible work request. If it’s not, you can say no then. If it is, then you go to business reasons. But as a business, have a policy that you say applies to working from home, and stick to it. That’s my view, what do you reckon?

Monnette Samo: I agree with you.

Andrew Douglas: That’s my rant. That was my rant . That’s me who’s .

Monnette Samo: Very passionate.

Andrew Douglas: I think out of every second call that I’m getting at the moment, I’m getting flexible work request issues with people with illness, people who are now saying they’re ill and therefore want to work from home ’cause they’ve now started living further away. A whole lot of compounding factors, and we need to get back to the basics of getting the structure right. I think it’s up to you now to read the case study, isn’t it?

Monnette Samo: All right, yeah. Let’s go.

Andrew Douglas: Your eyes better than mine?

Monnette Samo: We’ll see.

Andrew Douglas: Okay. Give it a shot, okay.

Monnette Samo: Spinetti Enterprises. She was 56 years old. She was a divorcee trying to save enough to retire and spend time with her grandchildren. She had been struggling to support her married daughter whose relationship with her husband of five years had recently become turbulent. Her daughter had two children, both under school age. Spinetti relied on Judy to manage warehouse stock. This was a hands-on role involving checking stock levels against sales and ordering replacements. Spinetti was gradually introducing an integrated stock management and accounting system, which Judy oversaw. When her daughter’s husband left, Judy moved in to support her daughter.

Her daughter lived 20 kilometers further away, adding an extra hour each way to Judy’s commute during peak traffic. At 56, Judy was not physically fit and showed signs of anxiety. She asked her manager, Miriam, if she could work from home at her daughter’s place on Fridays to help with the children. Miriam agreed, but it soon became clear that Judy could not keep up with her work on Fridays. Some key tasks involving stocktaking and reconciliation could not be completed from home.

The commute was taking the toll on Judy. She was tired and frustrated by her daughter’s anger and alcohol abuse, and she was finding it difficult to get work. The previous Thursday, she had fallen asleep at traffic lights. She did not feel it was safe to continue driving that distance. Judy saw her doctor, who gave her a certificate stating that she was worn out, tired and anxious, and needed to work from home for the next four weeks, followed by a gradual return to the workplace.

Andrew Douglas: Don’t you love that graduated return?

Monnette Samo: There you go.

Andrew Douglas: What does that mean? All right, so the first question is “Under the new Clerks Award amendments, can Judy successfully request to work from home?” And the answer is “Yeah, you can.” Doesn’t mean you get it, but you can. And would it provide her with more flexible hours? Possibly as a result of it, but does it take us anywhere? No. So, does Judy have a proper basis to make flexible work requests?

Monnette Samo: Yes.

Andrew Douglas: Can you stop moving it ? You’re killing me, my eyes are going like this. I think you might read that one. Can you read that one, ’cause , my eyes going like this. ‘Kay, we’ll try that again, question two.

Monnette Samo: All right, so, does Judy have a proper basis to make a flexible working request under section 65 of the Fair Work Act? And if so, can the business lawfully refuse it?

Andrew Douglas: So it’s interesting because, this isn’t school aged children. For Judy, that one’s out, but it is for an immediate family member in managing her daughter, okay? So there is a protected attribute that sits inside flexible work that does entitle the claim. But what’s obviously clear is the business case requires her presence.

Monnette Samo: Yep.

Andrew Douglas: Okay, so what’s the question number three?

Monnette Samo: And she’s also 56 years old.

Andrew Douglas: Well, that’s right, and can I just say, and the 56 year old, she’s not progressing towards retirement. In fact, she needs to keep working. So the 55 is designed about the gradual reduction of work. It’s the moving towards retirement. That’s what 55 is about. It’s not about “I’m 55.”

Monnette Samo: Yeah. That’d be nice.

Andrew Douglas: Wouldn’t it? 67. Eight, 68. I can’t do six seven anymore.

Monnette Samo: Yeah, I know.

Andrew Douglas: Have to do six eight. Doesn’t work as well, does it?

Monnette Samo: So if the doctor changes the certificate to a certificate of capacity, could Judy have a successful workers’ comp claim?

Andrew Douglas: Interesting, isn’t it? Because here she has, through no fault of her own, extra trouble, okay? And it’s making her tired, and it’s coming to work, but no chance at all. Absolutely no chance, because it’s not work that caused it, it’s something extraneous from work. So she has no chance of success in any state or territory.

Monnette Samo: And final question is, “Judy told her coworkers that she had fallen asleep at the wheel, and she had been observed napping at work. Can Spinetti rely on its safety obligations to require her not to work until she can demonstrate that she is safe to do so? A major part of her role involves operating motorized plant to carry out stocktaking at the warehouse.”

Andrew Douglas: So interesting, isn’t it? So, just say Spinetti came to that view, well, they’d have to stand it down on pay.

Monnette Samo: Yep.

Andrew Douglas: Okay? So, not a real upside for Spinetti in doing it, but if they did. The issue is once you’re aware, as we know, not sleeping for nights about reflects an error of judgement around about 0.08 of alcohol. So fatigue risks are really high, mobile plant, motorized plant, significant risk, doctor said doesn’t have capacity ’cause too tired. You’ve got to say at that stage, “Well, if you are to continue work, you’ve got to demonstrate to us that you are safe to attend work. What is the adjustments we can make?”

And there are no adjustments we can make because it is the travel, her age, and the stress that is doing it. So yeah, they could do it and then they could require an IME. And the issue is, the only person who can make adjustments is, “I’ll go back and live where I was.” It’s only her, she chooses not to make her own adaptions, she’s fired, ’cause there’s no foreseeable method of getting her back to work safely.

And yes, when her role involves motorized plant, and it must, to carry out the role she does, there’s no other adjustments that can be done, and she is attending work, and we’re creating this for her. I think she’s in trouble, and that’s part of the reason I wanted to agitate the problem because, so often what we see when people make flexible work requests, they feel like they’re in the box seat, and they agitate all the mental health issues and physical health issues they have and they don’t understand that they’re gradually losing control of the litigious process.

And they’re going to land at a place, through their own architecture, that makes them unemployable, and their employment is terminated. So I just thought it’d be fun to twist around and show you what you and I do every day, we end up at the back destructive end of somebody who’s trying to shape an argument towards flexible work. God, it’s fun doing it with you, that was good.

Monnette Samo: There you go.

Andrew Douglas: We knocked it over.

Monnette Samo: Thank you very much.

Andrew Douglas: Okay, thank you very much. See you, bye-bye.