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Partner providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Paternity Leave – 9/5/13

Paternity leave

Thursday, 9 May 2013



CS       Yes, Turner Freeman, good sponsors of the afternoon program, certainly in 2013 it’s good to have them on board and David Taylor is in our studio once again. If you’ve got a question to ask on an array of topics which we’ll discuss in just a second. 131873 is the telephone number, David won’t be here forever so try and get in as quickly as you possibly can, that’s usually the best way to approach our “Ask an Expert” segment on the program. David, welcome.

DT       Hi Chris, how are you?

CS       Good to have you here. Fantastic, I am fantastic today. A lot has been in the news about paternity leave and under this umbrella of workplace laws, bullying, discrimination in the workplace, dress codes etc which we’ll discover and talk about in the program today. I think it’s fair to talk about paternity leave. Does it actually exist in some corporations first?

DT       Yep, yeah there are some corporations that have specific policies that have quite generous paternity leave. In terms of leave, there’s no distinction in the legislation between maternity and paternity leave. It’s simply…the tradition in Australia has been…

CS       Maternity leave.

DT       Well, actually it’s been more over the last 10 years, you can have one or the other but you can’t have both at the same time. So, mum can be off work or dad can be off work but you can’t both be accessing leave simultaneously.

CS       So, you talk about whether you can have it at the same time. That’s interesting. If we have a national paternity leave scheme, what happens to these corporations with a paternity leave scheme?

DT       They operate in a complimentary basis by and large so the right to leave is simply a right to 52 weeks unpaid leave after you’ve been a job more than 12 months so that’s the national right that everybody has. There’s a right under the…since 1 January of this year, there’s a right to two weeks paid leave, similar to the maternity leave provision at the minimum rate of pay which is $606 a week and then often people if they’ve got other access to other paid leave can access that on top of those entitlements.

CS       You might think this next question is a little bit of a political question but I’m not looking for a political answer, I’m looking for someone as an expert like you giving me a proper answer to the question, who has the better scheme right now, the Government or the opposition?

DT       They’ve both got problems I think is the short answer. The coalition one will be spending a huge amount of money for people at the top end so if you’re on $150,000, you’re going to be being paid by the Government at that rate of pay. That’s going to be a huge burden on the taxpayer.  At the other end, you’ve got people who are earning a normal wage, $70,000/$80,000 which wouldn’t be uncommon who are receiving $606 a week which makes it hard to actually live on so both of them are at different ends. There are real problems around the Government in terms of imposing on businesses to actually do the payment and that’s caused some real grief.  The coalition one will be imposing the cost of the whole thing which is enormous, you know $5 billion on 3,200 companies and I’m not sure what effect that would have on the economy so I think…the comments I’ve seen and I think are probably right, there’s real merit to both of them in different ways but neither of them have got the policy settings right.

CS       That’s interesting…and a good answer I would have thought. Now, can an employer at the moment deny, say, a woman primarily, maternity leave at the moment?

DT       Once you’ve been in a job for 52 weeks, you have an entitlement to take unpaid maternity leave.

CS       Even as a full time casual?

DT       Yep.

CS       Right, ok. They have to give you some form of maternity leave. And that could vary, right?

DT       Well, no. It’s just unpaid. So, really all it is is an entitlement to come back no later than 52 weeks after you start.

CS       But what about being paid while you’re off?

DT       No, there is then a separate entitlement that the Government will pay you, or the Government will, through your employer usually, make payment of up to 18 weeks paid to you.

CS       Well I know of situations where employers have thought, well I don’t want that person back now and they’ve just come off maternity leave, we’ve got to do a deal.  Does that go on?

DT       A lot….the reality is, it’s not easy.

CS       So they bribe the employee to try and force them not to come back.

DT       You have all sorts of messes. For example, your right is to come back to your pre-maternity leave position. For a lot of women, you’re not going to want to come back to a full time position, you’re going to want to come back to a part time position so an employer sometimes are inflexible and unwilling to work with that and then there are different obligations under the law that need to be dealt with. Simultaneously, it’s remarkable when there are redundancies in an employer, how often it’s the woman who is made redundant and that is something that happens time and time again. Because they’re the one who is not there and who’s face isn’t there and the employer says, well they’re the one I can most easily get rid of.

CS       I have so many questions associated with this and we’ll talk further about this area of the law.  131873 is our telephone number for David Taylor from Turner Freeman. It’s 27 to 2.

131873 is our telephone number. Turner Freeman our sponsors…sponsoring our legal segment every Thursday afternoon, David Taylor with us at the moment. I just want to ask you once again about maternity leave. What if an employer gets a tip off from rumour around the workplace that a woman has become pregnant and decides all of a sudden out of the blue that that woman is no longer wanted by the company. I bet these are some of the cases that you face on a regular basis.

DT       Yeah, we’ve spoken before Chris about age discrimination and how hard it is to prove that’s what someone’s doing. Similarly, it’s obviously unlawful to say to somebody well I’m going to take action because I think you’re the one that’s likely to become pregnant but I don’t think there’s much doubt that there is in a number of industries rampant discrimination against women who are at an age and at a stage in life when they’re likely to be about to start having children and they’re denied promotional opportunities and denied access to improved positions.

CS       Ok, let’s go to some callers. 131873, Phil go right ahead, David is listening.

C1       Good afternoon David and Chris.

CS       Hi.

C1       I just want to find out what rights a casual employee has? Now, with the casualisation of the workforce and a lot of large employer organisations going through these labour hire companies, my son applied for a position to one of these companies, they made him do what they call a suitability test. He passed the suitability test, he worked there 18 months as a casual, the organisation then advertised some permanent positions, he applied for the permanent position, they made him do the same suitability test that he passed 18 months ago, they said he failed the suitability test and because he’d failed the suitability test then he wasn’t allowed on the site for three months so, therefore, then the labour hire company wasn’t allowed to put him on site as a casual and basically was then unemployed.

DT       The real complexity of the question is you’re asking is actually more about the relationship between labour hire companies and primary employers and the situation where you have a company that says, about somebody who may be casual or who may be on a permanent employment, we don’t want that person on site and the labour hire company then says to someone, well we can’t place you and, therefore, you have no work. A casual employee has rights against unfair dismissal, like a permanent employee once they’ve been there more than 12 months so your son may have had access to that. But the fact of the labour hire company makes it all very confusing and difficult to act on.

C1       Right, so he’s got no recourse then. They can’t say, as a casual through the labour hire company, he’s suitable because he passed that test but as soon as he applies for a permanent position, he’s then automatically unsuitable and, therefore, unemployable?

DT       Well, the unfair dismissal claim would be against the labour hire company and in the example you’re giving, the labour hire company has done nothing…it’s hasn’t made any decisions other than reflect the decision that it’s contracted to make so the unfair dismissal…he gets reinstated to a position but the labour hire company still can’t place him. There is a real difficulty around unfair dismissal and labour hire companies and there’s some real unfairness that goes on.

C1       Yeah, because if he had of stayed as a casual and didn’t apply for the position, he would effectively still be there. The labour hire company didn’t have a problem with his attendance or his work rate or anything like that, it’s just the mere fact that he’s then applied for the permanent position with the host company, not through the labour hire company then the host company said, no he didn’t pass the suitability so then the labour…because that was a condition of the employer but then the labour hire company couldn’t then take him back on so to me, personally, I find it unusual that he could be pass the test initially, work there successfully for 18 months, never been disciplined or have any sort of administrative problems and then somehow fail the same suitability test after 18 months and says that he’s no longer able to work on the site.

DT       You’ve got to wonder about the fairness of the test don’t you?

C1       Exactly.

CS       Yeah, exactly. Phil, I’ve got to move on, thank you very much for that. Now, I made this mention before about Tony Abbott announcing his IR policy. He’s made a lot of obvious statements about the fact that he wants fairness in the workplace, he wants to retain the fair work laws etc as most politicians would but, of course, he doesn’t want to be caught making too many changes to IR and you tell me whether I’m wrong here because they’re going cease him, obviously, on whether work choices is back. That’s one of the oppositions problems right?

DT       I think the experience of work choices was so poor for the Coalition Government and it was one of the real key issues that cost the Government in the past that the experience since then has been the coalition trying to avoid making any statement they would make change if they were going to be in Government.

CS       Yeah, exactly.  I do understand that he’s bringing back what’s called a “Australian Building and Construction Commission” and we’ll hear from Tony Abbott in just a second but this is a major reversal and basically he’s bringing back the police who monitor unions.

DT       Yeah, that’s right. There was around…particularly around the CFM, you as a union, the last Coalition Government brought in some quite strong legislation that let them regulate the industrial relations in workplaces which effectively sought to interfere in the negotiation because they said the parties couldn’t be trusted effectively…well, the unions could be trusted.  He seems to be suggesting that that’s going to be brought back in and then extended across more broadly.

CS       Yeah, let’s hear what he has to say about this very important key point.

Abbott “But the heart of our policy is ensuring that the rule of law operates in our workplace and that unions and other industrial organisations are run honestly and in the interest of their members so we will fully re-establish the Australian Building and Construction Commission, we will establish a Registered Organisations Commission to ensure high standards of union and other industrial organisation governance. There has been example after example of rorts, rackets and even corruption inside some important unions.  We’ve seen charges against Michael Williamson, the former national president of the Australian Labour Party. We’ve seen charges against Craig Thompson, until recently a member of the Labour Party in the Federal Parliament, we’ve seen the ICAC hearings. We need the same high standards of governance in unions as we expect in companies and that’s why part of our changes will be to ensure that dodge union officials face the same penalties as dodgy company officials.”

CS       Ok, so there you go. No real surprises with that policy. Bring back the Union Police to make sure they’re doing the right thing.

DT       I think there’ll be a lot more from the coalition on unions and the conduct of unions during the campaign and every time there is a discussion around industrial relations, that’s where they will go and that’s what they’ll try to talk about.

CS       Ok, back to the workplace, back to our callers on 131873 and annual leave. Danny, you’ve got a question for David.

C2       Yes, good afternoon guys. Yes, mine’s in regard to the annual leave about accumulating too much annual leave. Can an employer kindly recommend you take the annual leave to get your balance back down to four weeks?

DT       The short answer is generally, yes. The employer can direct you as long as it’s reasonable…they provide some reasonable notice to you and as long as it isn’t telling you to take it down to nothing. It depends on how much they want you to take and how much notice they’re giving you as to whether it’s fair in the circumstances.

CS       Because it’s a negative on the balance sheet for a corporation and that’s why they insist that people should take annual leave, right?

DT       It’s a significant exposure for employers that they have to be able to control as they operate. Indeed, because of the nature of annual leave when employees leave, employers are required to pay the value of any outstanding annual leave to the employee.

CS       Ok, what about forced…we spoke about forced annual leave, what about forced pay cuts. When is it legal and when is it illegal David?

DT       There are very few circumstances where it’s legal to force someone to take a pay cut. Almost all employees, perhaps all employees operate…most employees have their pay set by a contract of employment. The alternative is if you have it set by an award or an enterprise agreement. If your pay is set by a contract, an employer can’t cut your pay without your consent.  You need to agree because it’s a variation to the terms of your contract, in terms of an award or an enterprise agreement. Occasionally, you’ll see changes to those things which lead to an actual reduction in pay. So there may be changes to allowances or they way shifts operate that might lead to some people having an actual reduction and that would be lawful in those circumstances.

CS       Right, ok. That’s very interesting. Still on pay, let’s talk to Alan. Alan, you got a question.

C3       I have an agreement regarding a performance or specific performance with an employer and it wasn’t in writing, it was with witnesses present. I just wondered if that’s enforceable without something in writing.

DT       Yeah, there are very few contracts in law that need to be in writing and employment contracts certainly don’t. The fact that it’s in writing just makes it easier to prove, it doesn’t make it any less contractual.

CS       But you would have to have, in Alan’s case, some kind of notes?

DT       No, no. You’ve just got to think about how you prove it. So, somebody saying, I was there and this is what we agreed is a degree of proof. Obviously, if you’ve got somebody else there saying, I was there as well and that isn’t what we agreed, it becomes a contest of those discussions.

CS       Do you feel a little bit more optimistic Alan?

C3       Well, it’s a bit daunting but it might be worth pursuing. My colleague that was there actually, in that meeting, he was two weeks short of 5 years long service at the time when his employment was terminated in writing but the termination notice expired after those two weeks. So, in other words, adding the termination notice that he was given, it took him past the five years employment, would he be entitled to some portion of the long service?

DT       He may be, I think would be the short answer. Notice can either be given actually, so you’re actually told that your employment will end at a date in the future so you have two weeks’ notice or, often, it’s paid in lieu of notice so your employment ends on a day and you’re paid an amount equal to the balance of the notice period and your employment would end on the earlier date. Now if you had an entitlement and some people would for long service leave on termination after five years. If you served out the notice and your final day was after the five years then you may have that entitlement.

CS       Ok, Alan, we’ve got to leave it there. Thank you very much for your call. 131873 our legal segment this afternoon. We’ll do a little bit more with David Taylor from Turner Freeman. One of the emails we received during the week on workplace dismissal came from Graham. Graham writes:

Email:  “I was let go from my senior management position two days before six months service. I met all my KPIs and was given no feedback that my performance was sub-standard and no warnings given. There is no misconduct involved. I’ve been unemployed since 8 February and I’m still unemployed. I have a wife and two children to support. I find that Fair Work does not cover me. Is there anything I can do to obtain recourse?”

DT       There are potentially two places to obtain recourse. One would be if the termination was for a prohibited reason so if it was because of gender or race or one of those things, there would be an opportunity to obtain recourse there. And the second thing would be to look at the terms of the contract of employment and ensure that they’d been complied with. If there had been a breach of those terms then there may be an avenue for something as well.

CS       Ok, 7 to 2. Peter, go ahead.

C4       Hi, how ya going mate?

CS       Very well, turn that radio down, mate, go for your life.

C4       Ok, basically what I’m ringing up about is a whole bunch of people got transferred from one section of the workforce…a great distance, one or two hours away, and were told there was no work left available and as soon as we transferred over into the positions, they hired an extra 40-50 people to take our roles and train them up in our positions. Also, people who took redundancies because there was a lack of work, they were hired back as casuals over us so I was just wondering, is that legal?

DT       It’s really difficult to tell on the short history you’ve just given us. There are a range of issues that would arise. It’s only…you can require someone to move but not unreasonably, you can…if you’re saying to somebody that they’re redundant, you can say well here’s an alternative but you’re going to have to travel for an extended period, do you want to accept that or do you want to take the redundancy? That’s certainly open to employers. And if that happened then there’s no redundancy that occurs. However, as a broad concept, it’s not open to an employer to make people redundant and then rehire into that position straight away on different terms or at different rates.

C4       Well, basically, that was a choice between a redundancy or transfer but we were definitely told there’s no more work left here. If you stay here, you’re going to be made redundant. So, obviously, every logical person made the decision to transfer and, like I said, as soon as we transferred, within four months, they hired so many people and people who did take the redundancies were hired again into the positions also but on a casual basis where we did not want to transfer, we were just told to transfer because we had no work there so I don’t know if that’s legal or not…it just seems odd that we were forced to transfer because under their advice that there was no work and then within four months, they hired so many people again.

DT       Yeah, it sounds pretty tough doesn’t it. You’d have to look at the facts of exactly what happened to work out whether it was legal or not.

CS       Yeah, I need to move on from that Peter if I may. Firstly, a couple of quick ones. Dress codes – can employers enforce dress codes?

DT       If they’re reasonable and necessary.

CS       Can they put CCTV in places like the studio and watch what we do?

DT       In two different ways they can. If they tell you they’re going to do it and you can see the camera, they can or, alternatively, if they get an order from a Magistrate because they think there’s unlawful activity going on, they can.

CS       Can they follow my emails?

DT       Subject to there being a policy and in most workplaces there is a policy, yes.

CS       Gwen wants to know what’s the difference between permanent casual and casual?

DT       Permanent casual, the law is a mess on this I think you’d have to say. There is legally no difference, in reality there’s a world of difference. Permanent casual, I guess, comes out most around unfair dismissals. If you’ve got a regular expectation of work and you’ve been there for 12 months, the fact that you’re a casual doesn’t stop you being able to obtain relief for unfair dismissal.

CS       Alright. Thank you for answering all of those questions and thank you for taking the calls, David, thanks for coming in.

DT       Thank you for having me.

CS       Alright, David Taylor from Turner Freeman, sponsors of our legal segment each and every Thursday and, by all means, if you’ve got a question, send it in, go to send us an email and we’ll raise it next Thursday when we have the same segment.


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