Partner providing Q & A on the 2GB Chris Smith Afternoon discussing Employment Law – 27 October 2015
Tuesday, 27 October 2015
CS–Chris Smith /DT – David Taylor /C1,2,3, etc – Callers
CS Yes Turner Freeman Lawyers. Our employment segment right in here and under way. We’ve got some good emails on sick leave I want to put to David. David Taylor, a very good afternoon to you.
DT Good afternoon. How are you?
CS Very very well mate . Now, as we usually do remember we’ve got to tell you about your local newspaper because there’s a column in your local newspaper which is the Turner Freeman Legal Matters column and it covers a range of topics, compensation and negligence law, family and employment law, wills and estates law and superannuation and disability claims and you can have a look for that. Thanks to Turner Freeman, I’ve got a $100.00 Westfield Voucher to give away. Who wants it? Does anyone want it? 131873, 131873. A $100.00 Westfield Voucher and we’ll give away that voucher based on your questions between now and 2 o’clock on employment law. Any kind of contract negotiation that you might be going through. Maybe you’ve been put off. Maybe you’ve been made redundant but all of a sudden that same job has come up three months after you’ve left and you want to know where you stand. What about sick leave? Have you got a question about that? Go for your life. 131873 and as I said that $100.00 Westfield Voucher to the caller of the afternoon between now and 2 o’clock. Now I want to clarify something before we go. Last week we were going to talk about the Uber versus the Taxi Council case which was in court at the time and you were part of I think acting for the taxi drivers. Where is that case up to in terms of what your involvement is and what you can say about it?
DT I can tell you a little bit about where the case is at. The matter is back in court. I can’t talk about what’s happening with any of the parties or anything like that. Broadly where the case is at is there was a case brought by Uber against a bloke that was going around they say, conducting Citizen’s Arrests and they sought to stop him doing that.
DT In turn……
CS So this wasn’t….. Hang on. So this wasn’t….. I think everyone was under the impression that it was the taxi drivers who charged into court to try and get rid of Uber.
DT No. They started the litigation.
CS Right okay.
DT In turn he then commenced a cross claim against Uber alleging that Uber was engaging in unlawful conduct by the operation of their UberX Service. Because UberX he says operates outside the scope of the Passenger Transport Act.
CS Right. Okay. Okay that clarifies it. And you are no longer working for them or what’s the situation?
DS Um. I think that’s uncertain.
CS That’s uncertain. Okay. Alright. So that case is obviously continuing at the moment with or with Turner Freeman’s involvement but it has been one hell of a period. Someone asked me the other day on air and I’d like to get your view on this. Could I get a bus tomorrow, call it a bus service and run it from Homebush to the City every day?
CS If I had a bus licence, could I do that?
DT I don’t know to be honest. I suspect not. The Passenger Transport Act. regulates the way you’re allowed to do certain things and if you look at the different forms of regulations, there are the Driver Regulation, so you need to have a certain licence to drive certain types of vehicles and there’s operator accreditation. So to operate you would need to….. to operate….. a
CS So the State Government would say that route belongs to the State Government?
DT In terms of buses I’ve never looked at it, I couldn’t say but the point to point if you look at the Act, the point to point vehicle services which are taxis and hire cars have special regulations so you need to have certain types of accreditation to be able to do each of those sort of things.
CS It’s interesting. It will go on and on no doubt but it’s in the papers.. almost every day and only recently we’ve had the ACT legalising Uber from October the 30th and you’ve just got to feel for the taxi drivers in the ACT who have taken out their licences and own their plates and they were valued at a certain amount earlier on and they may have even, you know mortgage their homes to get those plates and all of a sudden they’re worth less because there are others doing what they’re doing is ride-sharing at the moment, so you’ve got to feel sorry for them in the ACT. 131 873 is the telephone number. Now I want to go to an email before I go anywhere and do you reckon I can find it really quickly….. I think I might be able to …… it comes from, I won’t say who it comes from…. “Does my sick leave accrue?”. Now we spoke about this briefly last week. “Does my sick leave accrue from year to year?”
CS Yes, without doubt.
DS In almost all …. there are few that are marginal circumstances where it might not but for 99% of workers yes.
CS Okay good stuff. It’s 17 to 2. Kumar. Go right ahead.
Caller 1 Kumar
Kumar Ah, good afternoon gents and thanks for taking my call.
CS That’s okay, David’s listening.
Kumar I have joined a company on 6 months probation and my probation was extended for further 3 months, but I decided to quit the company and by that date it was 5 months I was working with that company.
CS 5 months under probation?
Kumar Yes initially it was 6 months. Three months initially and then extended for a further 3 months, but I resigned on the fifth month. Now I was paid whatever the balance was there in terms of my salary. But I would like to know whether I would be entitled to in cash and get my accrued annual leave for the five month period?
DS You should have been paid your accrued annual leave but you ……… it would be surprising that you were paid the balance of the probation period to the 6 months, so I wonder in fact you were paid out your accrued annual leave in the amount that they paid you on termination?
Kumar No, they haven’t paid.
DS Well, you’re entitled. All employees are entitled to be paid the value of their accrued untaken annual leave on termination and you start accruing leave from the date that you start.
Kumar Sorry, I missed that.
DS All employees are entitled to be paid the value of their accrued annual leave on termination.
DS And you start accruing annual leave from the day you start.
Kumar Okay, good. I will approach my employer again.
CS And that’s interesting. So he’ll go back to approach his employer and his employer must pay that annual leave?
DS So if you’ve been there for 6 months, you’d have 2 weeks accrued annual leave if you haven’t taken any annual leave, you are entitled to be paid the 2 weeks on termination.
CS And just something related to that. How does annual leave accrue, what’s the ratio?
DS Four weeks a year. That’s the national employment standard. Some employees have greater than that. Some ……
CS Especially if they work public holidays for instance.
DS Yes that’s for the time in lieu type thing and some shift workers get 5…… there are some kinds of shift work where you have got an entitlement to 5 weeks.
CS Right, four for the year.
DS Four for the year.
CS So at that pace, you’ve got 2 weeks in your hot little hands Kumar.
Kumar Hehehe – excellent. Thanks for answering my question.
CS Thank you very much. 131873 is the telephone number. Leo, go right ahead.
Caller 2 – Leo
Leo Yes, good afternoon.
CS Good afternoon.
Leo My query is in regards to superannuation. I’m an employee. Sorry I’m a sub-contract to one employee. Who’s entitled to pay the superannuation? Duty to pay superannuation.
DS You’re a sub-contractor to……
Leo To one employee.
DS I don’t understand…
Leo Sorry the one employer.
DS So you…..
Leo I work for a company.
DS Okay and you sub-contract?
DS So you are not an employee?
DS Do you sub-contract under your own name or sub-contract through a company?
Leo Under my own name.
DS If the….. it’s a little bit complex. The ordinary rule is that only employees are entitled to superannuation however, the definition of employee under the Superannuation Guarantee Act is a bit wider than a normal definition and includes a class as known as “deemed employees” and those are people who operate on the basis of sub-contracting relationship but fit a certain set of criteria which are basically where you’ve only got the one job and the work is for…. it’s basically just your labour. You’re not brining anything else to it and in those circumstances those people may have often do have an entitlement to paid superannuation.
Leo So if I bring my van into it to deliver goods, then ……
DS You supply your own van?
DS Well you’ll have to have a look at the test and see whether you fit the definition of a deemed employee or not. You may not because if you supply some plant you may not fit that definition.
Leo Right. That means that I’ll have to pay my own?
DS Unless…Well you’re not an employee of anybody though are you?
Leo No, I’m a subcontractor.
DS So there’s no obligation on you paying your own but at the end of your career you’re not going to have any superannuation so in that extent in terms of being financially prudent, yes you do but there isn’t the minimum 9.5% payable in that sense.
CS All right Leo thank you very much for your call. I want to get to as many as we can. Now compensation can’t change the past but it will make a difference to your future. So if you’ve been injured at work or in a road accident and is suffering financially, it’s time to turn to Turner Freeman Lawyers. Since 1952 they’ve been winning claims and achieving great results for their clients and are great value as well. Talk to a Turner Freeman partner before you sign up with another law firm and see for yourself. Call 13 43 63 today for a free case assessment and ask about their “no win/no fee” policy. Turner Freeman Lawyers, the compensation experts. Question for David Taylor of Turner Freeman. Derrick from Deacon in the ACT says “Can you use sick leave for non-urgent elective surgery such as a boob job or cosmetic work, work that is not essential or does it have to be when you are sick?”. I don’t know whether Derrick is getting a boob job at all, but…..
DS Good for Derrick.
CS Good for Derrick.
CS Each to their own.
DS This is a question I have often wondered and I don’t actually know the answer. When if for example if you have a …… I’ll give you another example I’ve thought of…. when you’ve got a medical appointment that you need to go to, can you use sick leave for that? The definition of sick leave in the Act is when you’re unfit to attend work and you are not unfit to attend work if you are going to a medical appointment, but you may need to go to the medical appointment, you’re not going there because it’s fun.
DS It’s not annual leave.
CS And specialists in particular are really difficult to nail down.
DS No, and certainly the flipside is if you are taking your elderly mother to a specialist appointment, you could certainly use your sick leave for that because that would be defined as Carer’s Leave and you’d be able to do that. But on the strict wording of the Act, I don’t know whether you could.
CS You’re not sick.
DS You’re not sick. So……
CS You should be planning your boob job Derrick. Plan your boob job……
DS Over the Christmas break…..
CS Or in your holidays. Exactly. Good luck with that Derrick. All the best to you. Jason go ahead.
Caller 3 – Jason
Jason Hey, how are you?
CS We’re well thank you.
Jason That’s a go. Well my mother-in-law she’s been off work for 15 years because she’s injured and first of all she’s got ….. the insurance company has to pay her until she’s 65. She’s reached that age, so now she’s received a letter saying that they are going to pay her until she’s 67….. to continue I think she gets 75% of her wage. I was wondering if she would be entitled to a payout because obviously she’s got to live with this disability for the rest of her life, not just when she hits 67.
DS That’s a worker’s compensation question and I don’t know the answer and I can’t provide the ……
CS Well under the Broadcasting Act Jason, issues of workers compensation can’t be discussed publically on the radio and that’s just how it is. It’s a weird situation but sorry mate, we can’t help you. Mark, go ahead.
Caller 4 – Mark
Mark Yeah, g’day how are you going guys?
CS We’re well.
Mark Good. My question is regarding my wife. She worked at a cafe down here in the ACT for just over 3 years as a full time employee. Now, to cut a long story short the guy went broke and he went into liquidation. Now the …….
CS She didn’t get her super?
CS Yeah. I discussed this only 2 days ago on the program. That’s interesting. Didn’t get a super and he claimed “sorry I’ve got no money to pay you”.
Mark Exactly. He went through the Tax Department. It went through the liquidators and all she received was $240.00…..
CS This is so common.
Mark $1,000.00 a week for 3 years and she was only one of probably 7 employees who never received a cent in superannuation. If any…… any legal act or any legal avenues we can pursue?
DS It’s very difficult and unless you can show that he went into liquidation to avoid paying those amounts.
CS Which is a tough one.
DS There’s not very much you can do. There’s a system called FEG, which used to be called GEARS which was brought in by the ALP or brought in by the Liberals and then increased by the ALP Government and maintained which provides that you get your statutory entitlements if your employer goes into liquidation. So you’d get things like your accrued annual leave and your long service…. not your long service leave…. and potentially your notice and your redundancy payments. It doesn’t cover superannuation because that’s not a payment.
CS Mark I discussed this with our Independent Senator Nick Xenophon on the program yesterday and he’s trying to develop some kind of regulation or law that puts the onus on these liquidated companies to pay super first as part of their debts and part of their requirement before they close up shop. Can I suggest that you contact Nick Xenophon in Canberra?
DS Can I raise one other thing because I think there is a big issue around superannuation. The big problem is, it’s not your personal right. So you can’t sue your employer for it. If the law was changed so that workers could sue their employer… you would have far less of this because people would be onto it in the same way you…….
CS If you could sue your employer. So this is something that you would have to liaise with Nick Xenophon about because that’s what he is trying to establish. Mark, I want to give you that $100.00 Westfield Voucher.
Mark Oh, you’re a legend. That’s fantastic. I’ll take the family out to some lunch or something.
CS Yeah $100.00 Westfield Voucher. It’s just such a really good question and it affects far too many people in this country. From Turner Freeman, David Taylor thank you very much for your time.
DS Thank you for having me.