Partner on the Chris Smith Afternoon Show discussing Employment & Workplace Law
Tuesday, 17 June 2014
CS – Chris Smith/DT – David Taylor/C1,2,3 etc– Callers
CS And the great David Taylor is talking work place law this afternoon, good afternoon Mr Taylor
DT Hi Chris how are you
CS Very good tie
DT Thank you very much sir
CS Just wanted to check, I’m very interested the way the legal fraternity dress and I just think that you have obviously had another career prior to being a lawyer, because you dress quite colourfully that’s all
DT Oh, thank you
DT I’ll take that in the spirit I’m sure you meant it
CS We have got a stack to talk about. One of the big traps for younger employees is under payment. Why does this happen, is that because younger employees don’t spend the time to work out what they should be earning and the bosses know it
DT I think there is a bit of that, I think there is a bit about, because there has been a tradition of youth wages and lower wages for younger people, that’s also played into it. I think there is also a sense in the community that younger workers are doing it for the experience, so any work is good for them and so what they earn matters a bit less, it’s not as though they have a mortgage or a family to look after, and so there has been less capacity for them to actually look after themselves.
CS There was a case late last week involving some teenage employees that were given discount pizzas and soft drink instead of what they should have got in wages. Now obviously that is a deal they’ve done with the boss, but the boss was found to be operating illegally
DT Yeah, the deal they’ve done with the bosses often is a bit of a misnomer. The extent to which they’ve got any capacity to do the deal, where the boss says well I’m going to do this and this and they say well fine because that’s how they expect it to work. They haven’t got much bargaining power. But certainly, ultimately in employment law, it’s not a good defence to underpayment to say, well the employee agreed to be paid under the odds
CS It’s not a defence
DT Never has been and logically it never will be, because the idea of minimum wages is that you can’t under cut them. And if you think about it in a social sense, it’s about trying to find us, provide a safety net, so that anybody can come along and say, well I won’t work for less than that and if you can come along and say, well I’m happy to take half the minimum wage, the minimum wage has no meaning
CS On that same case, the Federal Court Judge John O’Sullivan ruled that the practice belonged in the dark ages rather than the 21st century and as a pizza and pasta restaurant franchise in outer Eastern Melbourne were found guilty of under paying more than 100 employees a total of $258,000.00, the were fined more than $330,000.00 for doing so and they had to pay back the employees, so there is a big bonus coming for these people
DT There is mate, they already got their pizza and soft drink as well
CS They got a bonus
DT They did, on top of that. An interesting point on that is, the penalties they had to pay which are fines were paid by the employer individuals, so wasn’t even by the company, but by the
DT By the franchisee out of their own pocket
CS 131873 David Taylor is here to take your questions today on any aspect of work place law, its 22 minutes to 2 o’clock, Oliver your first cab off the rank, David is listening
C1 Good afternoon guys, how you going
CS Very well
DT Hi Oliver how are you
C1 Not too bad, I just have a quick query, I have just recently left a company who I was working for, I won’t name the company for obvious reasons. They started giving us, you know 1 or 2 days off a week without pay because there wasn’t enough work to keep everyone going. Now I have twin daughters, they are quite young and I obviously couldn’t afford this, so I moved on and found more work. But a friend of mine who is still working there threatened to speak to the union and Fairwork Australia, not to say hey you can’t do this, just to even ask if this is appropriate or ok for the bosses to do, and the next day he was sacked. I’m just calling on behalf of him to ask if there is any grounds to action against the company, because of that.
DT If I just take what you’re saying, that the worker made an enquiry about their conditions of work and about their employment and as a result they were sacked for making that enquiry, that is very clearly and explicitly against the law, and that employer has left itself open, if that’s true to being prosecuted both for compensation for the worker but also for penalties which are fines for their breach of the law.
C1 Ok so you would advise him to go and seek legal advice
DT Certainly I would. It is unlawful, it’s called adverse action to take action against someone including terminating them because they seek to assert a workplace right.
C1 Ok, no worries, thank you very much for that
CS Alright Oliver, thank you, 131873. I’ve got an email here from Charles. Charles has a legal question for you. “In March last year I retired at age 66 as working as National Sales Manager, for 8 years and 7 months. I was told I was not entitled to pro-rata long service leave, as the company operated under NSW Legislation as opposed to Federal Legislation. I accepted their explanation at the time, but a number of industry people have told me since that I should have been entitled to a pro-rata payout”. Should he have been entitled to that
DT Probably not, but maybe. Firstly there is no, this issue of NSW verses Commonwealth law, doesn’t really take you anywhere, there’s no real Commonwealth long service leave, long service leaves remains a State entitlement
CS So if he was told that by the bosses, they were pulling the wool over his eyes
DT Well yes, that’s not a issue, what is an issue is if you’ve been there for more than 10 years you are entitled to be paid out your long service leave, if you’ve been there between 5 and 10 years and you are sacked, other than for serious and wilful misconduct, or you resign because you are sick or because you have been injured, or for some other pressing necessity, you are entitled to be paid out your long service leave. If you resign because you are 65 or however old Charles is, and you want to play golf, and I’m not saying that’s what he did, but if that’s what he did do, then he wouldn’t be entitled to it
CS Why 8 years 7 months, I thought you had to be in a work place for 10 years before you got long service leave
DT Between 5 and 10 years, you are entitled to it on a pro-rata basis
CS Ok, good stuff, 131873, Tony hi
C2 Good afternoon gents, thanks for taking my call, just a quick one regarding a contract. I work for a company that basically represents other companies at store level, part of the contract 12 months ago was a $12,000.00 bonus for reaching targets, KPI’s all that type of thing. They never put any KPI’s into place until about 2 months ago, so for the first 9 months of the contract there was nothing in place, the contract is up in about 2 weeks and I just wonder where I stand as far as claiming part of that bonus, maybe the first 9 months of it
CS Good question
DT It’s a really hard question, so there are 2 common problems with the bonuses, one is that they are often expressed to be discretionary, so the employer will say well you can have a bonus of up to 20% or whatever of your salary but this bonus is discretionary in our sole discretion and the second one is where the metrics against which the bonus is assessed are never advised and therefore you can’t work out whether or not you’re entitled to the bonus or they don’t exist for a period of time. And it really comes down to trying to dig out what the agreement was between the parties and on the basis of that whether or not there is an entitlement to the bonus, and that is often quite a complex issue, I think you need to be pretty pragmatic about the whole thing and whether or not there is ongoing work, whether or not it is something you want to peruse how much the bonus is potentially worth, what was said to you in terms of the KPI’s you need to meet, so the fact they are not written down, if they said but it will be A or B or C and you’ve done those things, then you may want to peruse it, so you’d have to look at that sort of basket of ideas to work out whether or not it’s worth prosecuting or not
C2 Ok, thank you, look they said the KPI’s would be advised and they never were, and look I’m part of a team of about 5 or 6 people, we are all in the same boat, I guess if we all put our hands up then I guess they’ll have to
DT Have a conversation with you about it, and certainly you are always better off doing these things in a group.
CS Yes as a group, there is power in people. Ok thank you Tony. Seliva, go right ahead David is listening
C3 Hi David how are you
DT Hi Slavia how are you
C3 Good thanks, a quick question, the situation at my wife’s work has changed and now instead of paying them they give time in lieu, is that legal?
DT It depends on the industrial instrument, is there an enterprise agreement or an award
C3 Yes there is
DT You’d want to have a look at that instrument and see what it says as to whether or not it’s lawful and the other thing you’d want to have a look at is her contract of employment, so what she got when she started and what it said around overtime and payment in lieu, time in lieu
C3 Ok I’ll check that but, if there is something would it also stipulate if overtime for example would be a time and half, does the time in lieu work the same way
DT No, time in lieu as a normal thing doesn’t. It’s just time on, time off and that is one of the issues around having time off sets instead of overtime. But you want to have a look at what the terms of the agreement and the enterprise agreement and the contract are to actually work out whether or not the employer can do it and if they can do it whether they are doing it in the right way.
CS All right Slavia’s call just off the back of that would there be awards that allow that to happen would there. I remember when I first started in radio and television land we used to sometimes work a month or 6 weeks in a row without weekends off and we would be working our backsides off and all of a sudden they say, well how many weekends do you need off? and we’d do a shonky little deal where I get, an entire week off instead of the 10 days that I was owed
DT There are certainly
CS And we’d cop that, you know, in the early days when you’re starting off
DT Like the young workers at the pizza place
CS Correct, soft drink and pizza will do fine thanks, boss
DT There are certainly some instruments where time in lieu is used as a way of compensating for extra time rather than, overtime
CS It happens, OK, Aneu go right ahead
C4 Ok thank. My name is Aneu and I worked for a factory for the last 5 years full time, but they make casual salaries, for the last 5 years I worked 100 hours every fortnight, they pay me $13 per hour only. Is this legal in New South Wales?
DT Can you say that again, they pay $13 per hour
C4 Yes $13 an hour for the last 5 years. I worked 100 hours fortnightly and no overtime and they pay the same rate
DT That seems very very unlikely to be lawful to me. You’d have to look at the industry and make sure
DT From my memory of the national minimum wage is more than $13. I would have thought that is unlikely to be lawful. I think you want to get some advice and you might want to speak to the Fair Work Ombudsman about that
CS Fair Work Ombudsman, Aneu
C4 Thank you so much
CS Ok, 131873, stack of people wanting to have their questions answered. We will do that with David Taylor from Turner Freeman Lawyers our sponsors and they will be answering your questions after this.
CS Lets go to callers in our legal matters segment with David Taylor from Turner Freeman, Sharon go right ahead
C5 Good afternoon, just hoping you can give me some advice, I have engaged with a company in November 2012 in a full time capacity. Every 90 days I receive a variation to the terms of engagement which is essentially a letter to say that I’m engaged for 90 more days with them. I’m just wondering how that, where that stands, I mean, can I as you can imagine I live on tender hooks come the end of June, I’m waiting whether or not I’m going to get another letter of variation from this organisation, I was just wondering if that is true engagement of a full time employee
DT Full time is just a reference as to how many hours you work, so you can be full time on a one week contract if it’s for 37 or 40 hours. Are you an employee or on a contract
C5 I’m an employee
DT It’s not common but it’s not unusual to have rolling contracts of the kind that you’ve got and in some ways you’ve got a little bit more security, well you do have a bit more security than say a casual employee who has a contract on a day by day basis. That said in terms of moving from what you have to something more permanent, that provides you a greater degree of security, ultimately it’s a matter of negotiation between you and your employer and them recognising that the downside for them is at the end of each 3 months you can simply say on a day without no notice to them, I’m sorry I’m going somewhere else. And so it’s trying to develop that relationship and working with them to get together so that you can both see that having committing to each other is a good thing in both interest.
CS Having said that it makes your sleep towards the end of every 3 month period a bit ordinary.
CS I bet
DT Not nice at all
CS I bet, all the best Sharon
C5 Thank you so much
CS Ok Phil, hi
C6 Hi Chris and David, I’m working for a major retail company, permanent part-time. I’m entitled to long service leave now. Decided to cut the hours back to about half, how do they work out the long service payment?
CS Good question
DT There is a formula in the Act and there is a couple of ways that it gets done. If you look at the Long Service Leave Act, Section 4 of the Act, which is one of the least clearly written pieces of legislation going round, it has a formula in there which tells you how you work it out
C6 Say she is owed say $5,000.00 now right on her current working hours and that they get cut in half for the next 5 years and then she retires. So would she get paid out on the last hour she was working
DT I think and I can’t remember what the formula is, but I think over 5 years that would be the rate of pay that would apply to long service leave, so assume someone was full time for 5 years and then half time for the next 5 years. When they took long service leave after 10 years they would, I think, be paid at the rate at the part-time rate for their period of long service leave and the fact that they had been full time wouldn’t count.
CS Alright Phil, I’ve got to get to our next caller, Steve go ahead
C7 G’day guys how you doing
CS Good thank you
C7 I’ve recently left a company and I’ve only just discovered that the last 18 months they never paid anything into my super. How do I go about, basically have I lost it or is there a chance of getting it back or what’s the go
DT The company still on foot
C7 Yes they are
DT The tax office are the organisation should pursue employers that don’t meet their obligations to pay super, so you should ring the tax office and try to have them take some steps to recover your super
C7 Put it this way, I’m not the only one there is probably 40 people in that boat
C7 Yeah, the crew that they’ve got, I won’t name the company, but yeah I know of at least 40 staff there that are all in the same boat
DT Well I would certainly suggest that you should get in contact with as many of your 40 colleagues as you can and all approach the tax office at the same time
C7 Not a problem, thanks very much
CS Yeah, gee how does that be allowed to happen
DT It’s extraordinary isn’t it? It is quite amazing how widespread failures over extended periods of time to pay super is
CS Ok I’ve got some time to squeeze in Matilda, Matilda quickly go ahead please
C8 Oh hi, I was fired at 5 months pregnant and I was with the company for almost 8 years. I just wanted to know what my entitlements were and what I can do
DT You were fired at 5 months pregnant
DT And you’d advised them that you were pregnant at that point. I think what you should do is get some legal advice. You’d want to look at whether or not the reason for the termination was because you were pregnant or for some other reason. There is no rule against sacking someone just because their pregnant, but there is a very strong rule against sacking someone because they are pregnant, does that make sense, so a pregnant person who does something wrong is entitled to be sacked
CS We’ve run out of time maybe we could have a chat off air Matilda just to make sure that she is clear about what you’ve just said
CS And maybe she has got a supplementary question because I simply don’t have the time having to go to a network ad break. David thank you very much for coming in
DT Thank you for having me
CS Always good to have you and your ties in the studio, fantastic, from Turner Freeman Lawyers our sponsors of legal matters.