General Workplace and Employment Law issues on 2GB
Tuesday, 4 March 2014
C – Chris/DT – David Taylor/C1, C2, C3, C4 – Callers
C – We’ve got our Legal Matters segment with the good law Yes from Turner Freeman. Our heavy hitters and the kind of law firm you need on your side. And it’s good to have David Taylor back into the studio. David good to have you here.
DT – How are you? Good to be here.
C – Been watching the cricket?
DT – I have been, they’ve done well haven’t they?
C – A good score. Good score.
DT – A bit of toughness, finally getting there.
C – Alright, now, plenty to talk about in terms of work placement. By all means give David a call right now. He’ll take your calls and try and answer to the best of his ability, whether you’ve got your own drama in a work place situation or a family member has and maybe David’s advice could take it further for you and possibly get a solution. 131873. But I understand that you are somewhat connected to what’s going on at Qantas and given the fact that right now it seems to be the talk of the town with cabinet agreeing to lift certain foreign ownership sections of the act. We’re going to hear a lot more about it, but Qantas of course wants to get rid of about 5,000 employees. As far as I can see it might sound simple to get rid of 5,000 employees but it’s not as easy as that is it?
DT – Um, no it’s not. 5,000 is a big number. Just so we’re clear I do a bit of work for the Qantas pilots so that’s my involvement in it. There are obligations.
C – Have they engaged you yet?
DT – I do work ongoing with them.
C – Right okay.
DT – I have for a while. I acted for them around the lock out and all that sort of stuff. There’s 5000 in a whole lot of different areas and there’s a lot of different enterprise agreements. Industrial relations at Qantas is really complex.
C – 60 work place agreements.
DT – Yes, Yes, I think that’s something that the company has decided to do because it allows them to have lots of different bits of the workforce that they can work with a different rates and on different bases. There’s a complexity there that’s been at the driving of the company. It’s also historical because they’ve got the old Australian airline and there’s still legacy issues.
C – What is it? 45% of the agreements are still based on legacy agreements? And this is 22 years after the privatisation of the airline.
DT – Yes, Yes.
C – You would have thought after 10 years you’d move forward from that, but 45%. I don’t know whether, maybe that just says something about the loyalty of workers or maybe it says something about the wicket they’re on.
DT – Speaking about pilots, because that’s the bit I understand the best. There’s a, and this is not true just of Qantas, this is true pretty much with every airline. Pilots stay in a job for a long long time. They have systems based on seniority which basically ties them to the company and the company to them. So if you look at the average length of service for a Qantas pilot it’s probably 20 odd years. Which compared to any other industry is just extraordinary. So, Qantas because there’s a big investment in the pilots they want to keep those people. They’re very high quality employees so there’s a real need on the part of the company to keep them and the flip side is that for pilots, because everybody else is operating on seniority if you leave and go somewhere else you go to the bottom of the list. So if you’ve got 20 years service there’s real incentive to stay there because otherwise you’re going down and you’re competing against people who’ve just joined.
C – Okay, so are there some of these 5,000 that Qantas simply won’t be able to get rid of?
DT – They can certainly..
C – Try
DT – And they can. There’s no inherent blocks in retrenching people if that’s what they need to do. There was some action yesterday in the Fair Work Commission about consultation provisions. And certainly one of the things that there’s an obligation on pretty much every employer to do before they retrench people is to have a discussion with them to see if there is a way they can avoid retrenching them and that doesn’t seem to be a, that’s not a particularly onerous thing. You know, sacking people is a real deal in that person’s life and if there’s a way to deal with so that you don’t have to sack them, that’s something that should be investigated.
C – They’re talking about payouts in the vicinity of $500 million.
DT – Extraordinary isn’t it?
C – It’s a massive number.
DT – Yes.
C – And you wonder whether, okay, we’re saving all of this, the wage bill by getting rid of 5000 people. But hang on a minute you’ve got to payout $500 million to get somewhere. So when do they, when does Qantas make a benefit out of not having that kind of staff number under its employ when you’re paying out $500 million?
DT – Yes, you’d hope they’ve got some sort of model that’s worked through all of this to work it out. But they seem to, you know, they’re pretty good at the big announcement, Qantas.
C – So in terms of the pilots for instance, what sort of a payout would there be to pilots of the pilots where to be given their marching orders?
DT – There hasn’t been a pilot retrenched by Qantas since 1974. So.
C – So, does that mean the pilots are unlikely to be included in this phase?
DT – I don’t know, as far as I’m aware there hasn’t been any announcement that there’ll be any retrenchment of pilots. Um, there’s a formula in the agreement, in the work place determination that prescribes how much they get. But there’s also some complexity about how you do it, um also for pilots because..
C – Years spent?
DT – Yes, years spent.
C – Degree of suitability for particular aircraft..
DT – No, its years spent. The payment is determined by years spent..
C – Right, okay.
DT – The people who get retrenched, the most junior get retrenched. The seniority system means that your last on first off.
C – Okay.
DT – That’s the basis of it.
C – Alright, well there’s something you may want to talk about. We should also raise the Employee Liability Act. But we’ll do that straight after a break. And take your calls 131873, some free legal advice on the station this afternoon. David Taylor won’t be here forever so jump on right now. He’s from Turner Freeman Lawyers. Now compensation can’t change the past, but it will make a difference to your future. So if you’re suffering because of someone else’s negligence turn to Turner Freeman Lawyers. Turner Freeman Lawyers are heavy hitters, and the type of law firm you need on your side to win. And they’ve been winning claims for a long time. When a Turner Freeman Lawyers acts for you they draw on over 500 years of combined experience, the financial and legal resources of a national firm and a reputation as tough, uncompromising litigators who won’t rest until you get the compensation you deserve. So give Turner Freeman Lawyers a call. They’ve got offices throughout New South Wales and Queensland. Visit TurnerFreeman.com.au to find the details of your nearest office. Turner Freeman Lawyers when you need to win your case. 16 to 2, Turner Freeman Lawyers, our Legal Matters segment and a chance for you to get some free advice. Today we’re talking about the work place, we’re talking about agreements with employers and employee agreements with board. Anything associated with that, and in particular aspects of Qantas that may pertain to your role in the company, 131873. Belinda, David is listening go right ahead.
C1 – Hi David, look my enquiry is not really work place related. I’m building a home with one of the major builders and we’re having all sorts of issues. We’re at our wits end, they’ve given us a tender, singed a contract and now everything is just extra. There’s extra site costs, there’s extra costs for everything. I just would like to know where do we stand legally, in either pulling out of the contract, or, you know, holding them to the initial tender.
DT – It is not an area of law that I’m particularly expert in. I know there is some state government bodies around fair trading and things like that, that you should enquire of, and they may be able to provide you with some guidance as to where to go. Its..
C – Have you contacted NSW Fair Trading yet Belinda?
C1 – Yes, but it’s all very wishy washy, and it’s just, I mean we’re renting a home while this is, while we’re going through this process and that is very time consuming and they just don’t really. They’re not a great help to be honest. And you know, we’ve gone over time with tender because of some council issues that weren’t our fault. Now there’s an extra $5,000 for that, the slab needs upgrading and now there’s extra costs for that, like.
C – Belinda, have you got a fixed costs contract with your builder?
C1 – We do, but they’re variations that they’re saying are beyond their control. So.
C – Yes, look, can I just say, having build 2 homes in my life. I don’t own both of them. Gee, I tell you what, you’ve always got to, you know, probably calculate the fact that it will not only go over time, but it’s probably going to cost you another 20%.
C1 – We’ve calculated that, but we’re talking another year over time.
C – Yes, can I just suggest, as I said David’s not a lawyer in that field, but he has colleagues who are and it may be worth contacting his firm Turner Freeman.
C1 – Perhaps I’ll do that.
C – Just do that because you know, we deal with that kind of matter, contractual law on a regular basis on this segment, but not today, it’s not work place law, but it’s something that they could probably deal with and give you some advice.
DT – Yes, certainly, right
C1 – I’ll do that.
C – Alright, good on you Belinda. Tell us about the Employee Liability Act, what is that?
DT – This is interesting, I had a client during the week where this act came up. It deals with the situation where an employee may drive a company vehicle and has an accident in the company vehicle and the employer is liable to pay for the damage caused by the employee while they were driving the vehicle and the employer says, well hang on, I want to come after you, my employee for you to reimburse me for the damage, for the costs that I’ve suffered. And what the employee, so it’s a car accident or any other damage that an employee may cause in the normal course of their employment. And what the Employee Liability Act does, is it provides the employee with some protection. So that unless there is some other, in some special circumstances, the general rule is an employer isn’t entitled to come after the employee for those damages, but has to wear the cost itself as long as the employee was acting in an ordinary course of their employment.
C – Right, so there is an inbuilt protection for employees in that circumstance.
DT – Yes absolutely.
C – Right, that’s interesting.
DT – So, you often hear about people, particularly car accidents, where the employer is saying, well there’s a $10,000 bill here and I want someone else to meet it because I didn’t do anything to cause it.
C – Just in terms of what is happening at the moment, are you seeing as a reflection of difficult economic times factories closing, manufacturers closing businesses and people losing jobs. Are you seeing more work in your office now, about now, from people who’ve lost their jobs, or about to lose their jobs seeking some kind of advice from you?
DT – Yes, certainly. I think it has.
C – Has it spiked?
DT – I’m not sure about a spike, but I’ll tell you where you do see it. People who come and see you and they’ve got a difficult time going at work, whereas a year or two ago they’d feel more comfortable about saying, well I’m just going to walk away from this job and get some other work. They’re more likely to say well I need to try and find a way to resolve these problems because I need this job. I’ve got the mortgage and I’m not sure that if I’m out there in the job hunt, that I’m going to be able to pick up anything comparable.
C – Yes, right, it’s all about a lack of confidence isn’t it?
DT – Yes.
C – Rebecca, go right ahead David is listening.
C2 – Yes Hi, I just have a question about long service leave. We’ve just had an employee who has quit after, just about 4 weeks up to his 10 years. Which we’ve agreed to pay his long service, but do we pay it, because he was casual and then he went permanent. Do we, how do we work out what the, how do we pay him?
DT – You pay him on the basis of his wage at the time of the entitlement accruing.
C2 – Okay, so he was on, like when he’s just finished up, he was on a large sum where 10 years ago he was only $400 a week.
DT – Yep.
C2 – So we’ve got to pay him what it is now.
DT – That’s, and it goes both ways, and I’ve had somebody who’d been there a long long time, who’d been there 30 years and in the year or two before retirement had decided to go down to part-time so that he could look after the grand kids. And the reverse happened to them. Sort of a, bit of a swings and round abouts generally, but it does mean that you look. There are two independent things, if you’ve got the qualifying period of service you then look at the salary over that, the previous period, and there are some formulas in the act but it’s basically looking at what they’re earned over the previous 12 months.
C2 – Okay.
C – Good on you Rebecca, thank you. This is an interesting one, I was just looking at the calendar today and I noticed that today being the 4 March is the 12th year anniversary of Alan Jones, Ray Hadley and myself being on air. Now do I have as a contracted employee, do I have long service leave?
DT – Yes, you..
C – Even if it’s not in the contract?
DT – As an employee as opposed to a contractor you’ve got an entitlement to long service leave. And they wouldn’t apply to you. There are few situations where that’s not the case once you’ve hit 10 years.
C – So how many now? After 12 years how many do I get David?
DT – You get 2 months.
C – Okay, SEE YA LATER! I’m coming with ya! I was just looking at that today and I don’t think Jonesy knows it, and I certainly don’t think Ray knows but today is the day that Alan and Ray and myself began on these shifts.
DT – Did you all start on the same day?
C – No, no, Ray was on breakfast, I was on afternoons and then Ray moved to mornings and then Alan got into breakfast and that was today the 4th of March. So it’s 12 years and I was just thinking, 12 years, that’s a long time to work in one place and do I get long service leave and I don’t think I’ve, it’s even mentioned in any of the contracts.
DT – No, it doesn’t need to be. I don’t think.
C – It doesn’t need to be?
DT – I don’t think you’d all want to take it at the same time, or else the station may be in some trouble.
C – Okay, lets talk about overtime. Craig go right ahead.
C3 – Yes, G’day. I just got in my contract that I must do a reasonable amount of overtime. Now I do a reasonable amount of overtime as far as I’m concerned, but what is a reasonable amount of overtime?
C – Spot on!
DT – How longs a piece of string?
C – Yes
DT – It’s, that’s a very common formulation indeed. It’s in the Fair Work Act as well, it depends a bit on the industry, the amount you earn, the amount you earn above the award, the, what would be the normal expectations. So, what’s normal in hospitality, for say a chef, is very different for to what would be normal for somebody working in a shop, and again would be very different for somebody working in an office. What sort of industry are you in?
C3 – I’m a truck driver.
DT – Er, if, I would have thought reasonable overtime’s things that arise because of a delay in deliveries, or because there are events that are beyond the employer’s control.
C – But awfully subjective.
DT – But, if they’re regularly saying, well instead of doing this you’re going to work 3 or 4 hours a day or a number of occasions a week. I’m not sure that’s reasonable.
C3 – Yes, well basically I do near 4 hours a day overtime, but they’re saying that I’ve also got to work weekends.
C – 4 hours a day overtime?! And even that in itself irrespective of what they’re asking you to do on the weekends wouldn’t be regarded as reasonable.
DT – That doesn’t sound like reasonable to me. There’s, are you a full time employee, 38 hours a week?
C3 – Yes I am.
DT – There is also a provision in the Fair Work Act and the National Employment Standards which provides that a normal full time worker will do 38 hours and then it does talk about reasonable additional overtime hours. If your regularly being required to work 12 hours a day then they’re likely in breach of that provision as well.
C – Good on your Craig I got to run, thank you, 131873 Cathy go right ahead.
C4 – Hi, I just want to confirm what you just said about the redundancies. I’ve just been handed a redundancy package, my jobs transitional offshore, but they told me that it’s based on my part time hours as well as my full time hours. That it gets pro rated as to what you worked at. Like I’m finishing at the end of this month but my, they take into account that half that time was part time.
DT – Redundancies, periods of service for redundancy are different for periods of service for long service leave. So I’m not sure, is there a calculation for a long service leave entitlement in there?
C4 – Yes there is.
DT – Have they done the same thing there?
C4 – Ummm, long service leave, oh I don’t understand, I’ve actually got to call in for someone to speak to me about it. But they’ve also got something about, umm, in here that says, umm where is it, ex gratia. Do you know what that means?
DT – Ex gratia, that just means a payment in excess of what they’re obliged to pay you.
C4 – Yes that’s why I think they’ve taken that amount out, as for part time hours.
DT – Well, it’s not uncommon for redundancy entitlements and for calculations of service to pro rate periods of part time and full time when your doing the redundancy payment. Ex gratia payments are not uncommon as well and they would generally also involve you having to sign a deed which says that you won’t bring any claim against them.
C4 – Oh okay, okay thank you.
C – Alright Cathy thank you. Just in terms of redundancy which she has rung about. These are very flexible, more flexible than long service leave aren’t they, those packages.
DT – Yes, well there is no high point of what can be offered so..
C – Right okay.
DT – An employer if they want to get rid of people can offer up to what it wants to offer. There are some limits on the beneficial tax but there’s no high point. There are minimums and the Fair Work Act contains minimum numbers of weeks which umm, lead, if you’ve been there for 10 years you get 12 weeks pay on a redundancy so.
C – Okay.
DT – They’re quite, umm, they’re not particularly generous redundancy packages. A lot of people who work for big employers will have significantly more generous redundancy packages.
C – Okay, fantastic. Thank you once again David you’ve been a, well a well of knowledge and wisdom. Thank you.
DT – Thank you for having me.
C – Good on you, David Taylor from Turner Freeman Lawyers our sponsor of our Legal Matters segment.