Andrew Douglas: Tom, our main topic today is flexible work practises.

Tom Daly: Yep.

Andrew Douglas: Got a really interesting case of Paper Australia and Anthony May.

Tom Daly: Yeah.

Andrew Douglas: A guy who’s worked for 13 years in a flexible working arrangement.

Tom Daly: Yeah, to help him, allow him to pick up his kids from school and whatnot.

Andrew Douglas: Yeah. Yeah. He’s got three children. Paper Australia have said that’s fine, and one day, they get a new manager, and they say no.

Tom Daly: Yep.

Andrew Douglas: So he formalises the request, and they say no.

Tom Daly: Yep. And the reason they did that was because they said it was inconsistent with the enterprise agreement.

Andrew Douglas: Yeah, the enterprise agreement, including during that 13 years, describe shift arrangements, and this person, as a team leader, fell outside those shift arrangements.

Tom Daly: And it’s worth noting here that, under the Fair Work Act, if there is an inconsistency between a flexible working arrangement and an enterprise agreement, that can be a basis for rejecting it.

Andrew Douglas: Well, interesting. Sort of yes, and sort of no. So, up until this time, there’s absolutely no doubt that the money provisions of national, of the NES, always beat what’s an enterprise agreement, they form part of the boot test. So if we try and pay people out leave when they shouldn’t have it, if we reduce the amounts of leave, if we do all the things NES protects, you can’t erode that in an enterprise agreement. You can’t change what is a stipulated provision.

The NES is the rule, you can only amend above it, okay? But no one had ever really thought that the flexibility provision, although it is a NES provision, would hold a priority, and certainly Paper Australia didn’t think that, they wouldn’t have run the argument against the enterprise agreement. And understandably, Paper Australia said, “Look, he’s a team leader, and he can’t be there at times when he needs to lead.”

Tom Daly: Yep.

Andrew Douglas: And what the commission held is, well, no, the National Employment Standard is the rule, you’ve approved it before. It relates to responsibility to what’s protected under flexible work arrangements, and there’s no good business case, no reasonable business case that says it fails, and history says it’s actually been going okay.

Tom Daly: 13 years of it.

Andrew Douglas: Yeah. 13 years of it. So it’s a hard case to run, isn’t it? It’s hard to say you’ve done something for 13 years, but now it’s impractical.

Tom Daly: Yeah.

Andrew Douglas: Not even a wise thing to say, really, when you think about it.

Tom Daly: No, is there a better way they could have run that?

Andrew Douglas: Well, look, we weren’t there, were we? I don’t want to criticise too much without being there. But when, whenever you’re before a court, courts are very practical. Although they’re judges, in a way, they bring a lay mind to it, particularly good judges. And they’ll go, “You’ve been doing this for 13 years. Why is it a problem now?”

Tom Daly: Yeah.

Andrew Douglas: So if your argument is, “Look, we’ve done it at a continual expense, it’s caused problems, we’ve needed extra resources, there are safety issues that arise ’cause he’s not present when we actually need him to be.” They had to run that argument, they had to answer the question for the judge, then the judge probably would’ve gone, “That’s a long time they’ve worked for you to try and make this reasonable, no, this is not a reasonable request.” But you’ve got to answer the factual question that’s agitating the judge.

Tom Daly: Yeah.

Andrew Douglas: And it’s very rarely a legal issue that’s agitating a judge, it’s, they’re going, “There’s something not sensible about what your argument is.” And they then become quite deaf to quite good legal arguments.

Tom Daly: Yeah.

Andrew Douglas: So I thought it was interesting. I thought the next case, which is a much older case, which is Marx’s case, is an interesting case.

Tom Daly: 2025 actually.

Andrew Douglas: Yeah. Beg your pardon?

Tom Daly: This one, Marx’s, 2025.

Andrew Douglas: Oh, Marx’s is 2025 as well, I thought it was an older case there.

Tom Daly: I must have written it down wrong.

Andrew Douglas: I think you’ve printed that out wrong, I think that was 2013. But anyway.

Tom Daly: It’s probably my last.

Andrew Douglas: Thuy, if you can just make a note that Tom’s put down the wrong date of a case again, and then blow me up for it. Okay so, by the way, we don’t have to delete this part, just for the camera, that’s us just having a shot at each other.

Tom Daly: Yeah.

Andrew Douglas: Tell me about Mark’s case, ’cause I think this is a great case.

Tom Daly: Yeah so, in this one, the worker, who was a nurse, was already allowed a nine day fortnight permitting her to work three days from home, because she had a rather large commute to work 150 k’s. Then she submitted a further request, because she wanted to work four days from home and have a slightly different start time on a particular day, which the employer rejected, saying that it had adverse effects on her colleagues, and she was required to be present at work to fulfil some of her duties. And for that reason, there was a solid business case for saying no to her.

Andrew Douglas: And she quite properly raised this, she said, “But this is just the leadership preference. This is not about operational requirements.” And the reason we chose this case is, it talks about the soft issues of being present. You know, it’s the relationship formations, being able to make decisions, it’s the ability to lead on particular issues. It’s the importance of being physically present, what it does, but it also means that your lack of presence, if it casts duties onto other people-

Tom Daly: Yeah.

Andrew Douglas: Means that it is unreasonable. And they are very powerful business requirements to say, if your absence will increase the load of work upon other people, and the soft issues around your performance will be eroded by working from home, then being at work is critical. And I think the reason I like Marx’s case, it deals with a lot of the arguments about working from home as well as flexible work.

Tom Daly: Yeah.

Andrew Douglas: It shows that business requirements are not only, “Do I put load on other people? Can I do my job?” But, “What is the impact on my performance if I’m not present? And what is the impact on other people’s performance if I’m not present,” are relevant matters. And if you document and can demonstrate that, you’ve got business requirements. So, I think, fascinating case.

Tom Daly: Yeah.

Andrew Douglas: Why don’t we give this a bit of a run with a case study?

Tom Daly: Yep. Let’s do it.

Andrew Douglas: Come on, over to you Tom, hit the case study.

Tom Daly: All right. So Millie had worked for More-On-Makers for 13 months. She was 56, and had a history of mild anxiety symptoms, which her GP had treated with Buspirone for over 10 years. She had an excellent attendance record. Her husband, Ted, had just retired, he had some back issues that forced an early retirement, and needed help dressing in the morning, mainly with doing up his shoes.

Millie wrote and requested a flexible work arrangement when Ted retired. The changes from the original schedule of five days a week, 8:30 AM to 5:30 PM, included a late start at 9:00 AM to help Ted get ready for the day, and the option to work from home two days a week to be around him. This request was approved.

Millie worked on the IT help desk and did some internal consulting for More-On-Makers projects. However, she struggled with project work, because she was remote, felt isolated from project groups, and felt left out. Her anxiety condition deteriorated, and she sought a new flexible work arrangement that involved working from home every day on the help desk, but no longer participating in projects.

Andrew Douglas: All right so, the first question was, was Millie eligible to make a flexible work request? So what are the tests, what factors are alive to being able to make a request?

Tom Daly: Yeah so, the Fair Work Act lists a number of factors that can enliven the opportunity to make a request. One of them is if you are 55 years or older.

Andrew Douglas: Yeah. Pregnant, whether she’s not pregnant.

Tom Daly: Pregnant. If you’re a carer for someone in your home, a family member, or other otherwise.

Andrew Douglas: So a good question here is, is Ted somebody who requires care, in a caring responsibility? The test is a lay test that sits in the legislation, it’s not something which you have to prove disability, just that you have to care. So it could be getting children to school, could be doing Ted’s shoe lace up.

Tom Daly: Yeah.

Andrew Douglas: But on the evidence that we’ve got here, there’s not a huge caring responsibility. So what else could it be?

Tom Daly: The fact that she has a disability?

Andrew Douglas: There’s an argument that she has anxiety, but at this stage, it’s not really shining out. But yes, anxiety is a disability.

Tom Daly: Yeah. The 55 or older?

Andrew Douglas: And 55 or older. Yeah. Okay so, isn’t it great, you know, I’m considerably older than 55, and I think I should put in the flexibility work.

Tom Daly: Yeah, yeah, yeah.

Andrew Douglas: Well what happens at 55? Why do you need flexibility at 55?

Tom Daly: I’m not sure. I’m a fair way off that. Well, what do you think?

Andrew Douglas: I think it’s designed to make you have a better life.

Tom Daly: Yeah.

Andrew Douglas: I think if we find flexible work and work, then all good luck to you.

Tom Daly: Yeah.

Andrew Douglas: Okay so, that’s good. On what grounds? As More-On-Makers decided to pose it, what are they required to do? Now part of this, Tom, is the process. So you’ve got to consult with the person first.

Tom Daly: Yep.

Andrew Douglas: You’ve got to actually then provide a written response within how many days?

Tom Daly: Within 21 days. And that should include the reasons for the refusal.

Andrew Douglas: Yep.

Tom Daly: Stating what business grounds that refusal is based on. And you have to show some link between those business grounds and the request that’s been made.

Andrew Douglas: Yeah, can I just say? Take some time over that.

Tom Daly: Yeah.

Andrew Douglas: Be a bit careful about it, but you’ve seen with Marx’s case, you’ve seen with May, basic caring responsibilities will get you across the line. You’ve seen over-55 legislators gets you over the line. So what is it about that person’s role in being at work, which influences the way work is done? Does it create a burden to someone else when they’re not there? Does it mean the function of how you perform as a team is eroded by the lack of presence? But you’ve got to think laterally, but they’re real questions, because when a leader is not present, or when a person is not present in a team and teams are talking together, they don’t function as well.

Tom Daly: Yep.

Andrew Douglas: So I think there’s some interesting argument to have here to draught out the grounds. Which brings us the third question. Did the original flexibility arrangement create risks under safety, discrimination, and workers’ compensation?

Tom Daly: Well, I think there is a clear safety risk here. Last week we were talking a lot about psychological hazards.

Andrew Douglas: Yep.

Tom Daly: Or recently we have. And this woman, Millie, clearly has an anxiety disorder, and her arrangement is causing her some distress, so clearly there’s a safety risk there.

Andrew Douglas: So you got to intervene at that stage, don’t you? So, Section 22 in Victoria, and like provisions, say, you got to do everything that’s reasonably practical to monitor someone’s health. You’re seeing her health deteriorate, because to actually manage the projects on her current flexible work arrangement is creating stress for her. So if she’s at work, it wouldn’t create stress for her.

Tom Daly: Yeah.

Andrew Douglas: But when she’s at home trying to do it, or trying to fit around it, she’s struggling with it. So can you go back to a flexibility arrangement and say, “Look, we’re not happy with this because of safety concerns?” Absolutely. Do I have to do something because I recognise that she has a protected attribute under discrimination law. Yeah, look, you can tell she’s struggling. So at that stage, Section 22 of the safety legislation says you’ve got to do something. Discrimination law says, no, you’ve got to intervene and adjust, you’ve got to make sure that there are reasonable adjustments that meet the nature of the disability that arises. You’ve got to address it.

Tom Daly: I wonder how aware they would be?

Andrew Douglas: Well see, in the Birkin Suncorp, if a reasonable person could observe the changes that are occurring, you are deemed to have that knowledge. That was a general protections claim.

Tom Daly: Right.

Andrew Douglas: And it changed the law in 2015 away from, Tom has to tell me he’s got a problem too, if I’m a reasonable person, I observe Tom’s having a problem, then I must intervene and act, because that’s what the safety law requires. So we’ve changed a lot in 10 years time. It’s been a big change. Right, last part is workers’ comp. There’s no performance management going on here, so the test is not an objective test. If she experiences distress, pain, and becomes unwell as a result of a workplace arrangement she requested –

Tom Daly: Yeah.

Andrew Douglas: It’s compensable. Her claim will be accepted, ’cause it’s the subjective experience. So I just want you to remember, there are two different tests. The test is, did work cause it,

Tom Daly: Yeah.

Andrew Douglas: Yes. So tick that one then. Then is it subjective or objective? If it’s not performance management, it’s subjective.

Tom Daly: Yep.

Andrew Douglas: Therefore, if I experience a mental illness as a result of the work that I’m doing win compensable.

Tom Daly: So what you’re saying is, even though she requested this arrangement, they’ve condoned it, right?

Andrew Douglas: Yeah, and so it’s compensable. If she suffers as a result of it.

Tom Daly: Because that was confusing me when I read it.

Andrew Douglas: No, no.

Tom Daly: She’s asked for this sort of thing. No, I did it in a hurry. It wasn’t helpful Tom, I own some of that. No, no.

Andrew Douglas: Okay, Millie said she felt unsafe in the current flexible work arrangement, and More-On-Makers said she was directed to continue. Is there any workplace law risk in doing so, and what would it be, and what steps do you need to take?

Tom Daly: I’d say absolutely, if she’s already experiencing –

Andrew Douglas: She’s told you.

Tom Daly: She’s already told you that she’s –

Andrew Douglas: You’re on notice under safety law, aren’t you?

Tom Daly: Yeah.

Andrew Douglas: In Safe Work Environment, Section 21. Safe system of work, safe supervision. They’re all gone.

Tom Daly: Yep.

Andrew Douglas: Section 22, Monitor of Health. Yeah, not doing that very well.

Tom Daly: No.

Andrew Douglas: So you got to intervene. And I guess part of why we did this case study was to say, the moment you’re on notice of someone having a mental health-related issue, whether it’s a disease, or, you know, whether it’s diagnoseable on the DSM-V, doesn’t matter, the moment you are on notice of it through an observation, or through someone telling, you must intervene. You must find out and determine. And that would be through having her assessed, speaking to her general practitioner. But saying, look, here’s a job, this is what she’s doing, this is the expectations and needs for it, and can she manage those?

Tom Daly: Yep.

Andrew Douglas: But if you don’t do that, it’s just per se liability.

Tom Daly: Yep.

Andrew Douglas: Okay? So, a fun case study today.

Tom Daly: Yeah, I liked it.

Andrew Douglas: I told Tom, More-On-Makers is spelled more MORE, M-O-R-E, hyphen-on-hyphen, makers. But I wanted Tom to sort of get that it was actually about morons.

Tom Daly: Yeah.

Andrew Douglas: But he didn’t.

Tom Daly: Maybe our audience are bit more sane than I am.

Andrew Douglas: But then I always put in a word that tries to throw people, every time.

Tom Daly: Yeah.

Andrew Douglas: Every time, so Tom did pretty well at it. Okay mate, thumbs up. Thank you very much for having us. See you later.

Tom Daly: Thanks.