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Home | 2GB Legal Matters on the new Anti Bullying Laws

Topic: new Anti Bullying Laws and Workplace Employment Law

Tuesday, 4 February 2014

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LG      Employment law with David Taylor.  G’day David.

DT       Hi Luke, how are you?

LG      I’m well, nice to see you mate. We got some new anti-bullying laws. There’s been an amendment hasn’t there, to the Fair Work Act?

DT       Yeah, there was an amendment that was passed by the Labour Party before they lost Government but which was supported, ultimately, by the Coalition and they’ve indicated they’ll keep the law and they permit people who think they’ve been bullied in the workplace to go along to the Fair Work Commission and to try to get the assistance of the Commission in negotiating a way through the bullying in the workplace.

LG      Right.

DT       It’s an interesting thing because one thing that you can’t get out of it is any payment. So it’s not about trying to get money, it’s about trying to resolve the bullying issue in the workplace.

LG      Ok, 131873 I should mention is the open line number. If you’d like to call and talk to David Taylor from Turner Freeman about aspects of your employment and the law. So, were talking about potentially unfair dismissal, contracts…

DT       All of that sort of stuff.

LG      All of that sort of stuff.

DT       Discrimination.

LG      Discrimination.  Don’t sit there and wonder. Pick up the phone and dial the number 131873. David will be here for the next 15 or so…20 or so minutes so call us now. Let’s get to sham contracts while we’re waiting for callers. There are provisions that prevent companies engaging workers on a basis which is essentially employment, then calling the arrangement an independent contractor arrangement and paying less than award wages. Does this happen much?

DT       It happens a fair bit and it’s done at the bottom end by people trying to avoid their basic obligations. So, there was a decision that was handed down in the last week or two by the Federal Circuit Court which involved an individual who had been engaged as an independent contractor at about $12 an hour which was about $8 an hour less than the minimum provided for by the Award.

LG      Yeah.

DT       But because he was engaged as an independent contractor, the contract said that the Award didn’t apply and that therefore they were free to pay him at whatever rate they wanted. It often seems to happen with people who are particularly powerless so people who are on types of visas that mean they’ve got limited working opportunities and the like and it’s very difficult to enforce because there are people who find it very hard to find alternate work and people who find it difficult to actually find the mechanisms within the community to actually enforce their rights.

LG      So before we get the “what happens next”, the idea that you employ someone and say look, you’re on this contract so the Award doesn’t matter. Is that in any way legal for someone to do that?

DT       No, that’s unlawful.

LG      That is unlawful?

DT       If you go about trying to engage someone as an independent contractor so as to avoid having to pay their employee entitlements…

LG      Yes, yeah.

DT       That is unlawful and it’s a sham contract.

LG      Right.  And who prosecutes? Is that the Fair Work Australia? Played out in the Courts?  Who does the…

DT       There are a couple of different people who can bring an action on that.

LG      Ok.

DT       The Fair Work Ombudsman, which is the umpire that’s the Government body can prosecute and, indeed, the case that was decided this week was a prosecution by the Fair Work Ombudsman.

LG      Right.

DT       Alternatively, the individual who’s afflicted, can also bring a claim and they can say well this is how I was treated and now I want to be compensated for the loss that I’ve suffered.

LG      So the penalty is compensation to the tune of what you should have been paid?

DT       Yeah, the penalties are two-fold and they can be quite stiff. You get what you should have been paid and then the Court can impose penalties, which are fines. And so the one that was decided this week or the past week, the principal contractor ended up paying fines of in excess of $50,000.

LG      Ooh gee, thank you for coming. 131873 Natalie’s first up this afternoon. G’day Natalie.

C1       Hi…hi David.  I just wanted to ask about my current situation…I work at a company and I’ve been there for about seven years, I have a colleague who works there too and he’s just mean to everybody and a lot of people are scared, a lot of people who work under me, are very scared of saying anything or putting anything down as a formal complaint. We just feel powerless and we don’t know what rules there are in place for mean people?

DT       First up, there needs to be a distinction drawn between meanness and bullying on the one hand which is without defending it anyway, and unlawful behaviour on the other. So if the meanness or the bullying is on a prohibited reason, for example, because of the person’s gender or race or something like that, there’s a different set of claims. If it’s just about bullying, so about trying to belittle people in the workplace, make them feel…there’s a whole range of different things that constitute bullying and being mean is really, you know, right in the centre of those things.

C1       How do you find out what the definition is of bullying? So you know if it constitutes something that’s unfair?

DT       The Fair Work Commission website has some very good information about it. There’s a…if you go there, there’s a guide to anti-workplace bullying that you can download from the Commission website and that’s got some really interesting information describing bullying.

LG      Ok, and do you know what that web address…if you Google that Natalie, Fair Work Australia.

DT       Yeah, it’s www.fwc.gov.au.

LG      Ok, alright good luck Natalie, let us know how you get on. Les, you’re next.

C2       Hello David and Luke.

LG      Hello.

DT       Hi Les, how are you?

C2       I wanted to know about bullying for volunteers? Because my understand and certainly what I’ve been involved in is that there is no coverage for volunteers who may be bullied.

DT       That’s certainly true as I understand if from the Fair Work Act provision because it relates to employees because that’s what the Fair Work Act is about…it’s about the regulation of employment. There are prohibitions on bullying in a workplace, even not affecting employees so if it’s a volunteer workplace but there are some employees, then Occupational Health and Safety legislation provides some protection for all participants including volunteers. However, those people don’t have any right to bring a claim. So, the general step, whether it be in the workplace, in a volunteer area, is to look at management and to be trying to ensure that there are appropriate policies in place that can be used and appropriate procedures that can not create too big an issue and actually find a way for people to work together.

C2       I would agree with that being the case but my experience has been is that even though those policies are actually in place, the arbitrators of those policies are, in fact, the management.

DT       Ultimately, if you can’t get a place that’s safe from bullying, you might need to find somewhere else to volunteer.

LG      That’s ultimately what you have to do is it?

DT       Absolutely, I think.

LG      Alright Les, mate, got to leave it there. Sorry, they’ve got a million calls and not much time.  131873 is the open line number 2gb.com. Kevin, quickly, g’day.

C3       G’day mate, how you going?

LG      Yeah, good mate, what was your question?

C3       Well, we’ve got a contractor working with us but we’re told one rule and he’s told another rule.  We’ve got to have a 10 hour break between shifts but this guy’s allowed to work 16-18 hour days.  So, how’s that safe?  We’re told, safety-wise, as truck drivers, we’ve got to have a 10 hour break between shifts but this gentleman can work whatever hours he likes.

DT       Is this in New South Wales?

C3       That’s correct.

DT       The system around truck drivers in New South Wales is unique and a bit different to other parts of the country. There are things called contractor terminations which apply to contractor truck drivers but are like awards so it’s as though you have an employee award but it applies to contractor drivers. Now I’m not sure, off hand, what the provisions are in relation to rest and contractor terminations. More generally, Awards will often have provisions about minimum break times, whereas, for non-employees, because they’re not covered by the Award, those provisions won’t apply.  As I said before though, the basic provisions and requirements of occupational, health and safety, do apply to contractors and employees so the principal and the employer’s got an absolute obligation to ensure safety and they’re not going to have any good defence if they say, oh well, you know 10 hours…we could only show 10 hours for the employee but for the contractor, we could have them working 18 or 19 hours.

LG      So if there’s a risk due to OH&S, does that void that contract?

DT       No it doesn’t. It’s an obligation that the employer has and everybody else in the workplace has, to ensure.

LG      So if they don’t do it, they get find…or what happens?

DT       They get fined.

LG      Gotchya.

DT       And potentially, they’re criminal prosecution so, you know, we’re talking $50,000 fines before they’re far bigger around workplace safety.

LG      Yeah, good stuff. David Taylor joins us today from Turner Freeman as we handle legal matters.  It’s employment law and it’s brought to you by our very good friends at Turner Freeman.

And it’s Legal Matters this afternoon, thanks to Turner Freeman. Hey, you know you can contact them on 1800 800 088 don’t you? 1800 800 088. They’ve got offices throughout New South Wales and Queensland and, of course, they’re on the web at turnerfreeman.com.au. I’ll tell you about them a little later in the afternoon. 131873. Today, David Taylor joins us talking employment law. And David, Rod’s on the line calling from Riverwood. Go ahead Rod.

C4       Yeah, good afternoon, how are you?

LG      Hi.

DT       Hi Rod, how are you?

C4       I have had a few problems and I tried and rang to find out Award conditions for different people I know who are asking to check for them. You ring the Department of Fair Trading and you also ring Fair Work Australia and no one seems to be able to give you any clear answers on anything. So, is there one body you can go to or do you have to play between both of them?

DT       Well, both of them have some role in trying to inform people. It can often be difficult legal work.  It’s the sort of thing that there are cases about, trying to work out whether a person is covered by an Award and, if they are covered by an Award, what their classification under the Award is. So the fact they can’t give you an easy answer, is often because there is no easy answer and it’s a matter of looking at the award and trying to work out whether somebody would fit into a different category within the Award.

C4       But when you ring no one seems to be able to offer that information. They say go back to the employer and ask them but you wouldn’t be asking if you knew in the first place. I mean, things like basic clerical.

DT       Well, one of the things you can do is, again, go to the Fair Work website and all the Awards are there and you go down and you have a look at the classifications in the Award, and you try to work out whether the job the person’s doing fits within the classification. That’s all the person at Fair Work or Fair Trading’s even able to do and they’re never able to provide you with any certainty because, ultimately, only a Court could provide certainty as to whether or not someone’s covered.

LG      Alright Rod, good luck. Alan, g’day.

C5       Hi gentlemen. David, quick question, I work for a media provider. Is it legal to have people routinely rostered 7, 8 or 9 hour shifts without a break?

DT       There’d be some real issues around occupational, health and safety. There are also issues around maximum hours in a week and, potentially, depending on the level of the people, there’ll be issues around breaches of Awards. You’d have to have a look more at exactly what work they were doing to be able to provide a definitive answer.

C5       Well, these are production studio-based on-air people and there is a provision in our agreement that says, if you work beyond five hours and don’t get a break, you get a meal penalty paid. But my understanding is that that really should be the exception rather than the rule.  We are, routinely, now rostered long shifts. In fact, very rarely do we get breaks. And it just seems to me, certainly from an OH&S point of view, it’s dangerous. But I just wonder about the legality of it given that people are being pushed to the edge doing these shifts day in/day out. Sometimes, 6 or 7 days/8 days in a row.

DT       Well, I think you might be right about the dangers of it and I think that’s really the way that you need to approach it. There are often occupational, health and safety committees within organisations and that’s the sort of organisation or a union that can be approaching management and saying, well this sort of system of work is just not sustainable in the long term.

LG      Thanks Alan, good luck mate. In an instance like that, we were talking about the trucking industry before, if you spot something that’s not the way that it should be, or seemingly so and you put your hand up and you say to your manager or your employer, hey can I just talk to you about this. Then you’re tagged for life as a whinger and you’re punted eventually.  Is there protection? Because, mate when we raise those things and we say, look just do this, just do that, 9 out of 10 people I get the sense go, yeah, like I’m really going to do that…I’ll end up punted.

DT       I think that’s a real problem that exists and we were talking before about the bullying.  Often, when somebody genuinely wants to find a way to work through the bullying, anything they do will see them labelled as somebody who was a whinger or is going to make it difficult and trying to find a way that they can do it in a genuinely constructive manner, which is saying to the employer, hang on, the way you’re doing this is not good for you.  It’s not good for me, it’s not good for you, I’m miserable, I’m not working well, I’m not getting enough breaks or I’m going home and I feel horrible or I want to get another job. But, I think culturally at the moment, we have a bit of a tendency to blame the person that comes along and tries to fix the problem, rather than actually trying to work through the problem.

LG      Yeah.  We’ve got a minute to help Simon. G’day Simon.

C6       Hi David.  Just a question, my partner, she works for an engineering company in Chatswood. She’s an account assistant. She’s been there for about three years now and she believes she’s getting under-paid. I believe as well. She’s on about $13 something an hour, it’s ridiculous, she gets paid fortnightly, she’s just gone on maternity leave and they got a temp to take over her spot. She was training the temp and she asked the temp how much she’s on, what she’s getting paid…

DT       I think what you need to do is have a look at the contract and also the industrial instrument. That’s the sort of thing coming to a lawyer would be a useful exercise on that.

LG      Go to a lawyer?

DT       Yeah.

LG      There you are Simon, go and get some advice mate, go and see…well, I’ll throw a name in the mix, Turner Freeman, but that’s entirely a matter for you.  David, great to see you.  Part of the 500 years of combined experience at Turner Freeman.  How many years are yours?

DT       Oh 15.

LG      15…15 great years!!!  That’s Legal Matters.

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