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Home | Q & A about Employment & Workplace Law – 13/5/14

Discrimination in the workplace

Tuesday, 13 May 2014

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

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CS       David Taylor from Turner Freeman Lawyers is in the studio.  David knows how to answer your questions, he has done it a thousand times before on a Tuesday 131873 is the telephone number, you know how it works, we’re talking about work place relations.  Maybe discrimination law in the work place, we can discuss any of those issues, maybe a contract problem with an employer that you’d like to have cleared up.  Maybe something associated with being a full time casual employee and what kind of rights you have in your work place, or maybe there has been a barney, an ongoing barney that you’d like a little bit of a hand with some independent advice.  131873 David Taylor a very good afternoon to you

DT      Good afternoon.

CS       Good to have you here.  Tony Abbott has announced a scheme to pay business a $10,000.00 incentive bonus to employ workers over the age of 50 according to the scribes today.  I presume that someone in Joe Hockey office has leaked this out so it can get some kind of coverage today, because it is a positive move for those over 50’s who have a terrible job of trying to get a job.

DT       Yeah, it’s true, if you look at the issue around older workers, it’s not really about them retaining jobs, when they are in jobs they tend to be very stable and not leave jobs, well they leave jobs at a far lower rate than the younger workers.  The issue is when they’re out of work for some reason they have a really hard time getting new jobs.

CS       And I get calls like this all the time from people saying listen I’ll tell you what I’ve done and it’s impressive and I hear them and they sound very logical and rational and I don’t think they have a personality dysfunction, they may have I don’t know, but these people have incredible CV’s and they simply are told in job interviews either directly or indirectly they are too old for the job.

DT       It’s generally indirectly and they generally are not told, they just don’t get the job.

CS       What happens if I have a job interview tomorrow and someone says to me Chris, you’re too old for this job or they use the euphemism “you’re over qualified”.  Do I have a case?

DT       Well, it is unlawful to discriminate against somebody on the basis of their age.  So if the reason you’re not giving someone a job is because of their age, with a very few exceptions, that is unlawful.  You can’t do it.  The issue is being over qualified and what that actually means, which is the employer saying well I don’t think this person is likely to be a long term prospect because this job is essentially beneath their skills so they are likely to look for something else.  There is nothing inherently wrong with that as a reason and this is the problem more generally with discrimination law, and particularly around age, that it’s so hard to prove.

CS       Well what we’re expecting tonight is that business will be rewarded with $3,000.00 for hiring workers aged over 50 with further bonuses for keeping them employed for 2 years.  This is in tendered to boost work force participation in the 50 and over age group, the amount paid is more than 3 times the original payment promised, the scheme is predicted to bring about 32,000 workers back into employment.  131873 is the telephone number, 19 to 2 is the time, David Taylor from Turner Freeman Lawyers in the studio to take your calls.  Rob go right ahead, David is listening.

C1       Oh is that me?

CS       It is

C1       Off to bat! Yeah look I’ve got an issue with my employer, I work in retail, I’m a part timer, I was a casual for a while but they got rid of casuals, I don’t want to  mention who it is obviously, but unless you want me to?

CS       Not yet

C1       Not yet, but they just got rid of all the casuals and they made everyone part time and where I work, obviously part timers aren’t going to turn up 100% so they are making us be casual in a way, without paying the rates and I find that dodgy and offensive and I don’t what to do about it.

CS       Well before we talk about what you should do about it, the reason they do this David is to make sure there, or the employer is not committed to superannuation, to long term payments

DT       No casual gets superannuation what they don’t get is, annual leave or sick leave payments

CS       Right, and long service leave

DT       No, they get long service leave

CS       Do they

DT       If you’re a casual for more than 10 years, you’ll get long service leave

CS       So does it pay an employer to turn everyone into casual workers?

DT       Well this means they are actually going the other way, they’ve turned them from casuals into part time employees and the criticism over time has generally been they increase in casualisation of the work force, where employers are willing to pay a premium because you generally pay 15, 20 25% depending on the industry over the normal hourly rate to have a worker as a casual as opposed to a part time employee.  So the hourly rate carries with it the annual leave and the sick leave components and that’s the nature of casual employment.

CS       So Rob smells a rat and thinks it’s wrong.

DT       Well what’s happening here is that they’re converting people to part time and there still expecting the flexibility associated with casual.  So casuals can be called in or not at the employers demand and what Rob seems to be suggesting is that part time employees are being called in far more to essentially operate as casuals, and that is problematic because as a part time employee you are entitled to know your hours and know when your roster is going to be and have that stability because that is one of the benefits of being a part time employee.

CS       So Rob, what is your specific question?

C1       Question is because they are doing that, putting pressure on us to work essentially as a casual, what’s the ethics of that, can we complain, can we, obviously people are going to be sick, yet they have refused to give, I mean the casuals are there like, maybe 1 or 2 in the background, but if they don’t work, they don’t get super, so but I don’t understand, it’s kind of like very frugal very anal tactics to like pay the extra 4 bucks to employ casual when they are needed, and like everyone needs relief staff, everyone is going to be sick, no one is going to turn up on time, I don’t know what to do about it, I’m not a manager of the place the store, but the manager there is sort of fearful for his job, because he’s got a wife and kids and that pressure is boiling up.

DT       Well as a permanent employee or as any employee, if it’s not your normal contracted hours and this a legal answer which isn’t a particularly practical answer, but if it’s not your normal contracted hours, there is an obligation not to refuse reasonable overtime, but you are allowed to refuse demands that are unreasonable.  So if the demand on you to work is in your opinion, unreasonable, that something you are able to say well I don’t think that I can do that and what that would in turn do is to put some pressure on the employer to actually work out a more sustainable way of operating.

C1       By the employer is essentially the store manager and then your compromising friendships, I want to talk to the higher up and I don’t know what my rights are.

DT       Well what you need to do is have your manager be talking to the higher ups and saying well

C1       He doesn’t do that out of fear

DT       Yeah, these are some of the really difficult issues around employment and particularly employment in larger organisations where people quite low down are the ones who are given the responsibility of running things and making difficult decisions.

CS       Alright Rob, thank you for your call, Elaine go ahead

C2       Oh yes my daughter in law had 12 months off when she had her little twins and she went to claim, years later, she went to claim her no claim bonus but they said no, you’ve got another year because even though the kept the job open for her, they didn’t count that year as going towards her long service leave.  Is that correct?

DT       Yes that it correct.  The long service leave Act provides a definition of service that means that you, the period of maternity leave and few other types of leave, don’t break continuative service on the one hand, but aren’t counted towards service, in terms of counting for long service leave.

C2       Well her twins are costing her a long of money, it’s even more now.

DT       They’re not cheap are they!

CS       Thank you Elaine appreciate that

C2       Thank you

CS       Just something that I was mentioning about 20 minutes ago which was Mike Beard and we went there live to his press conference, it reference to implementing lobbying rules, the new rules which include publication of ministerial diaries which Katy Kimberly spoke to us about and an independent lobbying regulator, were approved by cabinet last night.  The Premier says I’m determined to restore the public’s trust in our political system and the MP’s that represent them.  We are nailing shut the back door to Government.  It’s an important step that puts on notice any lobbyist or business thinking about breaking the rules or expecting favourable treatment.  The package will increase transparency, it will establish the electoral commission as an independent regulator of lobbyists, it will apply a set of ethical standards to all third party lobbyists and other organisations that lobby Government, it will empower the independent regulator to investigate alleged breaches and impose sanctions which could result in lobbying firms being removed from the lobbyist register and other organisations placed on a watch list and there access to Government restricted, and requiring ministers to publish quarterly diary summaries of scheduled meetings and approving a recommendation from ICAC that the Ministerial code of conduct become applicable under ICAC Act giving the watch dog the power to investigate and make findings.  Well what about changes to the offences associated with illegal donations?  What about the fact that we increase the fine or the punishment beyond $11,000.00?  What about extending the statute of limitations from 3 years to 7.  He could have done that as well.  Not sign from the Premier that that will be adopted.  It’s 12 minutes away from 2.

CS       Here is a question for you David Taylor from Turner Freeman, from Masoud, I work for a company that is owned by a religious company which require us to be clean shaven.  No beards, nothing.  Now my question is can that be discrimination?  They keep on threatening us if we don’t shave we may lose our job! That’s from Masoud.

DT       I don’t know.  If the reason why the texter has a beard is religious, so if there is some religious reason he has a beard, then that would be problematic for the employer.  You would have to also wonder why the employer says you have to be clean shaven, and whether there is anything more than a preference.  That’s quite a difficult issue and not one that I’ve come up against.

CS       Alright, ok, 131873, Kate hi

C3       Oh hi Chris, I’m 58, I’m on the DSP and I find it very degrading and humiliating.  I was in high powered positions, so my resume unfortunately may be, have me over qualified.  But I just want part time or casual work, a couple of days a week, just to feel worthwhile and useful.  Now I’ve applied, late last year I applied for quite a few positions and never heard anything, although one place I actually picked up an application form, now on that application form it asked for medical conditions and for medications that you were taking and they also wanted you to go and see their doctor before anything else.  Now if I put down my medications,

CS       Gee I would have told them to go and drop dead

C3       Well I know, but you are stuck between a rock and a hard place, I really want to, just work a couple of days a week, because I want to get my confidence back.

CS       Alright let’s ask the question.  Firstly, the first question to David, does she have a right not to give them that information?

DT       She certainly got an entitlement not to give them the information, but you can be sure that would also mean that she won’t get the job.  Which is her comment about being between a rock and a hard place.

CS       Yeah

DT       Is exactly right.  The legal position is quite clear an employer is entitled to take into account medical conditions that would impede your capacity to do the job.  But if it is a medical condition unrelated to the job, then that’s irrelevant and that’s not something they can take into account.  The issue becomes they ask in a very broad brush way, what medical conditions you suffer from to make that assessment and then determine even though there are conditions unrelated to the job on the basis of those of the persons not going to be employed.  And like with the age, how does somebody ever prove that.

CS       Kate a supplementary question.

C3       Yeah well, I mean when I was applying for the jobs, I felt I was quite capable of doing it, the industry was horticulture and even while I’ve had the depression, I’ve actually studied horticulture at TAFE and I know I’ve got the qualifications to do it.  But the big thing is, I only want part time work or casual work, I only want to work a couple of days a week and you know it’s just so hard to get it.  You know you want to feel useful, you want to feel like you are contributing and you know you want to try and see how you go, but just trying to get even an interview is the definition of impossibility.  And I really want a job in horticulture because I’ve learnt so much where I live I now do most of the common areas because they are so blown away with what I’ve done.

CS       Well I’ll tell you what Kate, this is something not related to our legal segment but however how about we talk to the horticultural experts of the 2GB Macquarie Radio National network and maybe we can pass you onto, maybe our garden clinic experts, maybe we could pass you onto someone there.  How about Kate you stay online and we’ll take your details and maybe Graham or Sandra might be able to help us from the Garden Clinic.

DT       Chris can I say something in relation to that, there is a really interesting contradiction between part time work and employers saying they want flexibility and older workers saying look I only want to work on a flexible basis and you’d think those 2 things should be able to meet really nicely.

CS       Yes

DT       And they just don’t.  And it is unclear, certainly in my mind, as to why you can’t get someone like that who says, well I just want to be flexible, I don’t want to work every day and employ someone, we don’t know when we are going to have ups and downs of demand and we need people who are flexible.

CS       Ok I’ve got to take a break then we’ve got news, but I’ll ask you to come back David, just for 10 minutes because we’ve got a stack of calls to get to, so we’ll keep you in the studio if I can and we will get to your calls don’t go anywhere, 131873.

You’re listening to the Chris Smith afternoon show, right across Australia

CS       8 minutes after 2, thank you so much for your company, we’re at the end of our legal matters segment right now with Turner Freeman lawyer, David Taylor, I just want to get to a couple of very important questions which might have some interest and be quite informative and insightful for other listeners, 131873.  Julie a question for David go right ahead.

C4       Oh good afternoon gentlemen, I’m making representations for a younger relative of mine who works for a restaurant a Brighton-le-sands, they have a couple of restaurants there.  They are owed 3 weeks in pay, they have not ever been paid penalty rates, it was compulsory to work Christmas Day, the were not paid penalty rates.

CS       The restaurant isn’t paying these employees and what status are the employees

C4       Casual

CS       Casual, right

C4       They’re frightened to make any representations or complain because they’ll lose their job.  It’s so unfair.  And 3 weeks wages they are owed.

DT       It truly is

C4       I don’t want to say whether it’s male or female, you know it’s a relative.

DT       It is unfair.  There are 2, or there are 3 options they have got, if there members of the union, they should call their union.  The second alternative they should do is call the Fair Work Ombudsman, the Fair Work Ombudsman has got a website and there is easy contact there and the third is they should contact a lawyer or somebody else like that to assist.  It is unlawful for the employer to take any action against them because they make a complaint, but certainly in these things they will always be safest if they act as a group rather than individuals.

C4       There are a number of them that are owed 3 weeks wages.

DT       Well your relative should get together with the others and they should work out together how they are going to approach it.

C4       Alright then, okey dokey, oh thanks for your advice.

CS       Appreciate that Julie, much appreciated.  Now compensation can’t change the past, but it will make a difference to your future, so you’re suffering because of someone else’s negligence, turn to Turner Freeman Lawyers.  Now Turner Freeman Lawyers are heavy hitters, the type of law firm you need on your side to win and they have 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 stuff, 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.  Their number 1800 800 088, 1800 800 088.  David thank you very much for your time this afternoon.

DT       Thank you for having me

CS       Good to have you in here, fantastic we’ll do it again very shortly.

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