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Home | Partner providing Q & A on Employment Law 20/10/15

Partner providing Q & A on the 2GB Chris Smith Afternoon discussing Employment Law – 20 October 2015


Tuesday, 20 October 2015 


CS–Chris Smith /DT – David Taylor /C1,2,3, etc – Callers 



CS       Yes thanks to Turner Freeman Lawyers and our Legal Matters segment, We’ve got a $100.00 Westfield voucher to one of the callers this afternoon so if you want to talk about employment law or any kind of contract that you might have with an employer or some action that you are considering taking.  131873 is my telephone number right now.  And remember to pick up your local newspaper too.  You can read the Legal Matters column there and they cover a whole range of legal topics, similar to what we do here.  Family and employment law, wills and estate law, superannuation and disability claims, compensation and negligence law all in your local paper and brought to you by Turner Freeman.  The number is 131873.  And David Taylor is in the studio.  We haven’t had David in here for quite some time.  But he can answer your calls and best tip is to get in early because too often we get to the end of the segment and too many people can’t get on.  David Taylor, good afternoon.


DT      Hi Chris.  How are you?


CS       I’m very very well.  Um I watched Fair Work Commission Vice President Michael Lawler on Four Corners last night and he admitted firstly to tapping telephone conversations with his boss Ian Ross.  Now he did it to prove a point.  Putting that aside, let’s talk about the point of sick leave later.  Firstly, taping phone conversations with your boss just in case you are getting screwed, people might think that they should do that.  Is that a no no?


DT      Ah it’s a “be very careful no”..  I think would be the answer.  There’s the first distinction to be drawn is between what in my mind is tapping which is where it is a conversation between two people and you are not a party and that’s quite clearly illegal.  You can’t do that.


CS       Under Federal telecommunication…..


DT      And under State…. just under a range of laws.  So if you are not a party to a conversation unless you have a special right, you know, you’re the police, you’ve got a warrant, or somebody like that.  You can’t go around tapping other people’s telephone conversations.  Unless both of them consent.  But the other big thing is, is if everybody consents to it, then you can.  The interesting one which is where it’s a conversation between you and somebody else and you don’t tell the other person whether or not you’re recording the conversation and the answer to that is it depends on which State you are in.  The answer is different in Queensland where you can do it potentially as long as you are doing an external device.  So if you hold a cassette player up to the phone, that may be lawful but if you do it through the smart phone itself, that likely may be unlawful.


CS       So that may be why he was explaining what he was doing and the way he was recording it.  But anyway that’s a ….. point…


DT      In NSW the law talks about whether or not you are protecting a lawful interest and you may be able to do it if it is necessary to protect a lawful interest and in Victoria, the law is different again.


CS       That’s a smudgy line.


DT      Oh it is full of complexity and it’s a crime and so if you are doing it, it’s not the sort of thing you want to be close to the line on because if you are on the wrong side of it, you will end up in Court with the fence on the other side and you know there the potential outcomes.


CS       Okay he was also discussing and the reason why he was recording in one instance, was the fact that he had his boss telling him “oh you can take eternal sick leave”.  And as you know you only get 10 days a year.  Do we accrue sick leave?


DS       So the national employment standard which is the minimum entitlement now for employees in Australia provides 10 days a year accruing.  So in that context you do.  It used to be that some people didn’t accrue and it used to be that some people did have the sort of sick leave that the Vice President was talking about which was essentially unlimited sick leave.  The Commonwealth, well the State Public Service used to have that.


CS       But if he has only worked there for only say 10 years


DS       Yes.


CS       He would have only… he wouldn’t have accrued 9 months leave?


DT      No, well not if he was on 10 days a year.


CS       No.


DT      But there’s no reason why an employer can’t offer more generous sick leave entitlements than is the statutory minimum.


CS       So it’s up to the discretion of the manager?


DS       No.  It’s up to the discretion of the employer.  So if you’re an employee and your manager says that that’s fine, that doesn’t mean that you have a legal entitlement to it.  If you’re employer….. So if the manager’s got the right to speak for the employer, then they do. And that’s why you need to be careful.  Could I come back a second to the phone….. recording….I think the smart thing to do often is rather than recording which is you know seen as, certainly vexed and dangerous to….  if your manager says something that you want to record, write it down in an email and send it back to the email and say that we just had a chat and you said this………


CS       Yeah…. to confirm what we’ve chat………


DS       And just confirm what we have chatted about….  Now there’s certainly nothing unlawful in that.  If the manager does not come back straight away and say…. “Nah.. I didn’t say that…..” that’s pretty good evidence.


CS       And what about contemporaneous notes….. you could take notes straight after the meeting couldn’t you?


DS       Equally.  I mean they are equally good.  But not quite as good as the email back because the manager can say well that’s just what you wrote down, you could have written down whatever ………


CS       And he hasn’t signed off on it….


DS       But…. certainly if you’ve taken a contemporaneous note, well you say “here’s my record of what we’ve talked about and it say’s you say……… I can take as much leave as I want……” That’s a better record than not having anything.


CS       And I wonder therefore and no doubt Lawler will, if it gets to this.  If he has to argue his point, he might argue that his recording of that conversation was to protect his legal rights because if his legal rights on sick leave are in question, he had to prove his point….


DS       Yeah.  I wouldn’t want to comment specifically on that, but there’s a bunch of interesting issues.  If one of the parties is in one State and the others in a different State, where does the recording happen?


CS       Yeah.  Good luck untangling that…..Okay, Jody’s got a question for you, Jody, David Taylor is listening.  Go ahead.


Caller 1           Jody


Jody    Hello David, hello Chris.  I’m a bit nervous.


CS       That’s okay.  Deep breath.


Jody    Laughing


DS       We’re very nice here.


Jody    I’ve worked 24 years every weekend except when I’m on holidays or sick at the same place and now I’m on their roster for review.  They’ve taken one of those weekend days away a fortnight.  Can they do that or can the fact that we’ve worked constantly give us some sort of rights?


DS       How…. do you know what you are paid and whether you are paid as a casual employee or a permanent employee?


Jody    I’m a permanent part-time.


DS       Well in that context, if you’ve got a contract for a certain number of days and its two days and they are seeking to change that, normally they’d require your consent and they couldn’t simply unilaterally change that.


Jody    So if my letter says……………..  I’m working 32 hours per week.  Well I’m a bit more at the moment because they were short staff, but not anymore and my letter says 30 hours.  It doesn’t actually specifically say which days but the fact that I’ve worked constantly the 24 years….


DS       The legal question is what’s the terms of your contract of employment and is it such that you’ve worked on those periods for so long that effectively now the contractual term is that you’ll work those days and that means they can’t change it or does it remain that your…. their obligation to you is to provide you 30 hours work a week or pay you for 30 hours per week and they don’t have an obligation around the days.  You’d have to look at the …….


Jody    They say it’s that…..


DS       And you’d really have to look at the specific facts to make the argument to see how it goes.


Jody    Oh I see.  So the very fact that there’s a record that I’ve worked constantly doesn’t necessarily give us the right?


DS       It doesn’t automatically give you the right.  Obviously it would be helpful in establishing that that’s now what the terms of your contract are.


CS       Alright Jody.  Good luck with all of that.


Jody    Thank you very much.


CS       Okay, Elizabeth go ahead.


Caller 2           Elizabeth


Elizabeth        Oh, good afternoon, I’m just ringing about my shift work.  I work for an essential service in an old people’s home.  What they are doing is we have four units with 15 patients in each unit and 2 staff for each unit however, what they are doing is people are going on annual leave or sick leave or I’m sorry to the Mosque or whatever they’re doing and I am left to do the 4 units in 3 hours.  That’s to serve the food, do all the dishes, clean the kitchens.  I mean I’m beside myself.


CS       They’re slave-driving you.


Elizabeth        It’s making me ill.


CS       Yeah.


Elizabeth        And I don’t know what my rights are or what I can do to stop this.


DS       Well I think the legal and the short answer is, you’re not employed to do a task.  You’re employed to work for a certain period of time and you can’t finish the tasks in that period, as long as you are working conscientiously, then no legal criticism can be made of you.  There’s also an issue obviously, but it’s likely that it make you ill or create a risk to your health that would make….. there would be an obligation on the employer to identify that risk and take steps to avoid it and understaffing can be a real issue around risks to health which create a workplace health and safety risk.


Elizabeth        Okay.


DS       Now the question with these things are always tactically had you deal with the employer.  Now at first to speak to your supervisor and say, I can’t get through all these things.  If I try I become sick and I won’t be able to work.


Elizabeth        What happens if we have 3 hours to clean 2 units.  So he just says well just stay on until it’s finished.


DS       Well do you get paid for the additional time?


Elizabeth        Yes.


DS       Well then it’s essentially overtime and you have not a complete entitlement, but you generally have an entitlement to indicate that you are not able to work overtime.


Elizabeth        Okay.


DS       So if you say to them, look that’s fine but I can’t work that overtime today because I have some other commitment or something else.


Elizabeth        Right.


DS       That would put some pressure.  At the end of the day, what it needs to be about is trying to create the situation where they need to find a solution.  The solution they have at the moment is that you’ll do the work.


Elizabeth        Exactly.


DS       So you need to ensure that they see that isn’t an appropriate solution and that’s not a long term solution for them and they find a different way to deal with the problem.


Elizabeth        Okay, thank you so much.


CS       Hey Elizabeth you need a bit of a reprieve I reckon after being worked to the bone.  How about we give you a $100.00 Westfield Voucher to spend?


Elizabeth        Oh, that’s amazing.  Thank you very much.  I’m 70 years of age and I’m finding it very very hard but I’m working my guts out.


CS       Good on you and applause and thanks for all of that come in very different and mysterious ways, so it’s just come to you via Westfield and Turner Freeman.  A $100.00 Westfield Voucher coming your way Elizabeth.  Stay right there.


Elizabeth        Thank you.


CS       Good on you.


Elizabeth        I can’t believe this…..


CS       That’s okay.  Stay there.  We’ll get it to you and you can go and spend it to your heart’s content.  Chris Barnes and has sent me an email.  Chris says “Don’t you find it sad that the poor lady that you’ve just spoken to is slogging her guts out for a buck and there are fully capable other people bumming off the tax payer”…. He’s referring to younger other people Chris is.  131 873 is the telephone number.  An update on Acton Tunnel in Canberra. Air quality testing currently being conducted on whether there is a small amount of bonded asbestos stuck and being released.  Well initial indications are that there is no asbestos fibres present, no asbestos fibres.  The testing is yet to be completed and there’s a current one kilometre exclusion zone that will stay in force but better news from Canberra by the sound of it.  Rob.  Go right ahead.  David Taylor’s listening.


Caller 3           Rob


Rob     Good afternoon gentlemen.  I’ll try and keep it brief.  About 2 years ago I was a casual worker for a large waste company waiting to go on as a permanent.  Due to a little bit of industrial action going on with the permanents and the company I was strung along with a carrot in front of my nose which is all good and then a position came up as a sub-contractor.  I was called into the office by my manager and her manager and they said, look you take it, set up a proprietary limited, you don’t have to have your own truck, we’ll give you one of ours to use.  It’s all because of a permanent versus the company thing.  And that was all good and well and one of the pay…….. for me at that time was I was told that if I didn’t like it by the end of the year, which was Christmas just gone or last Christmas I should say.  If I didn’t like it or they didn’t like the setup I’d just go on a permanent.  There was an incident in another State.  The company further up the tree decided that all contractors use their vehicles and all agency people couldn’t use their vehicles so bang overnight I couldn’t use the truck.  I had no form of employment and so I asked her about the little [caveat] in our verbal contract and I was told that that didn’t exist anymore and that was it.  See you later.


CS       Do you want to dispute it?


Rob     Ah, well I want to see where I stand.  Is it disputable?  It was a verbal contract.  There were witnesses but the witnesses are two managers, one has left the company and well I mean let’s be honest, are they going to back their words up?  I doubt it.  But there are other people in the company that I work with that knew what was going on because obviously I told the guys that I worked with.


DS       There are two potential legal actions and you are right they both turn on whether or not you can prove that there was a promise to you that if this didn’t work out, then at your discretion you would be entitled to do this, there would be…. and that would be you know whether the Court would dispute…… there’s an action under the old Trade Practices Act, Australian Consumer Law and also potentially an action for breach of contract it there was a contact to that effect and they’ve breached it.


Rob     Okay.


DS       There’s potentially a claim there.  You’ve got 6 years from when it wall happened to bring the claim.  But you know at the end of the day the crucial and significant issue is going to be, can you prove the representation was made in the way you say it was made.


Rob     That’s the …….. right there


DS       Yeah.


Rob     All right.  Well it’s there.  It’s something that….. I mean I’ve moved on….. I mean it cost me a lot of money.  I was there for 10 months.  I set up a proprietary limited.  All the insurances, a Workcover lot as you know and yeah… outlaid all of that kind of gear plus equipment and then bang – the carpet out from under me.


CS       Yeah – well you need to consider what David has suggested and the other thing is as we keep telling people is if you want some professional advice is to just contact David Taylor at Turner Freeman Lawyers.  Good on you Rob. Good luck.


DS       I think it also goes back to that idea of recording things.  So writing it down is a good idea.


CS       Yes.  Making sure


DS       You’ve got notes.


CS       Yeah, you’ve got notes, contemporaneous notes.  I don’t have time to talk about Uber and you’ve been involved in the Uber versus that taxi industry case.  How about we leave it for another day.  No doubt it will make news in the next week or so because it has.


DS       It’s ongoing I think.


CS       Ongoing ….. So we’ll get you on air.  Maybe not in the studio but we’ll get you on air and discuss that for our listeners as well.  Thank you David.  Much appreciated.


DS       Thank you for having me.


CS       From Turner Freeman Lawyers and Legal Matters.

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