Turner Freeman on 2GB discussing workplace bullying

Thursday, 19 September 2013

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Luke    And today it’s David Taylor from Turner Freeman. G’day David, you well?

DT       Yeah, thank you Luke, yes I am.

Luke    Very good. A couple of things to talk about. We’re talking employment law today so if you are keen to call us on an issue to do with the workplace. You might have copped a raw deal or might be of the view that you’ve copped a raw deal, hop on the phone right now 131873.  Workplace bullying, new laws that will start from next year, dealing with bullying. What can you tell us on these?

DT       I thought this would be an interesting thing to talk about. here were some new laws that were passed by the last Government but there’s been no suggestion that they won’t come into force from the start of next year that deal with workplace bullying. Workplace bullying’s always been one of these just enormous issues in the workplace. It deals with the way people interact with each other in the workplace and, traditionally, there’s been very little that people could do about workplace bullying. Under the new laws, people will be able to go to the Fair Work Commission and seek the Commission’s assistance.

Luke    So these are Federal Laws?

DT       These are Federal Laws and will apply to anybody employed by a Constitutional Corporation which is basically anybody employed in the private sector.

Luke    So it wouldn’t matter what award you’re on?

DT       It doesn’t matter what award you’re on, it doesn’t matter what you do, it doesn’t matter whether you’re a casual or permanent employee. If you’re employed by a Constitutional Corporation, so if you’re a contractor you wouldn’t have the benefit of them, if you’re employed in the State Public Service, you wouldn’t have the benefit of them, but otherwise you know it’s got a hugely wide implication. You can go to the Fair Work Commission and you can tell the Fair Work Commission that you’re being bullied and if the Commission agrees with you, then the Commission can make an order requiring the employer to stop the bullying.

Luke    At what point does the employer get to say, well hang on in our opinion that’s not bullying?

DT       Yeah well that…well, the laws contain a specific exemption that bullying doesn’t include reasonable management conduct being conducted reasonably. So, that’s…I guess that’s one out for the employer. The bigger issue with bullying is often that it’s so much in the eye of the beholder. When you hear people talking about what’s bullying, and it can have an enormous and horrible effect on people, it’s things that from an outsiders perspective, seems so small and trivial that you wonder why you bother. So, people often talk about when they’re being bullied…you know, they don’t say hello to me, everybody else got a birthday card…

Luke    Can I stop you there? They don’t say hello to me? You’re not about to tell me that’s bullying are you?

DT       If, in a workplace, and if it belittles someone and humiliates someone and it happens consistently by a group of people, it is. You know, if there’s a group of people…

Luke    They don’t say hello to me?

DT       Yeah, if you’re in a workplace and there’s 10 employees and the other 9 systematically exclude you, that’s bullying. There wouldn’t be any…in terms of the legal perspective, there wouldn’t be any question that that could amount to bullying in circumstances. And, to be fair, people genuinely suffer psychological impact from that sort of behaviour. And employers, whether or not it’s unlawful or not…

Luke    But, hang on, 9 out of 10 people not saying hello would be a symptom of a much wider problem. It’s not just hello…there’s got to be other things like they all have coffee and we don’t…

DT       Yeah, but that’s exactly the sort of conduct…so, you know, I don’t get invited for a coffee, I don’t get the morning tea. You know, I’m not…when we have morning tea I’m excluded.

Luke    Dinosaurs like me want to now say, a teaspoon of cement and harden up.

DT       Yeah, and that is, on one level, you’d say…as a practitioner in the area, absolutely. On the…and I think there are two other perspectives you’d want to have a think about though. One is, from an economic analysis, bullying…you know, you hear all the time about people taking stress leave…

Luke    Yes.

DT       And I’m a practitioner on employment law. I don’t really know what stress leave is. It’s just this thing that people take.

Luke    You don’t know what it is?

DT       Well, it’s people…I mean, there’s no form of leave called stress leave, it doesn’t exist. It’s sick leave. If you’re unfit for work, then you can’t go to work. But, if you think about the amount of absenteeism, lost productivity, lost time because people feel unable to participate in the workplace and then just take it…not so severe as not attending work but when people are turning up and they feel miserable, they don’t want to work, they don’t…all they can think about is how someone’s speaking to them and they’re not really contributing, they’re not doing their employer a service so…notwithstanding, you might say toughen up. From an employer’s perspective, and this really is, ultimately a challenge for employers, having a cooperative workplace that’s working well together is paramount.

Luke    I’m not trying to sound callous but I do want to be the devils advocate a little bit here and often some of this stuff grows into something a bit bigger than perhaps it was originally. For example, if one or two people don’t say hello and then you tolerate that and it becomes an issue such that you are then separated by virtue of the fact that you didn’t deal with something, perhaps minor at the start. Is there not some role that us as individuals have to play to make sure that we are, you know, looked after or in a position where we’re not bullied?

DT       No, I think that’s certainly true and I think there are a couple of other really interesting elements of bullying that pick up on that. Bullying, unlike other types of workplace interactions, often doesn’t involve management and employee in the same way. It can be groups of people at similar levels and so you don’t have those same dynamics. You often, this is something very common, you have people who say well they bullied me, no they bullied me and it’s really just…it’s not bullying, it’s just people don’t like each other very much.

Luke    Yeah, got you, got you.

DT       And there’s no…you know, people don’t like each other. That’s true of any environment and the law certainly got no interest in trying to regulate to enforce people liking each other…you know you must like this person or you must have…

Luke    Yeah, that’s right, it’s a bit muddy isn’t it?

DT       Absolutely.  It’s a really difficult issue and I think that’s coming back to it. The real challenge and the real solution to the extent there is a solution is for employers to have a good system in place so that if an employee does feel like they’re being unfairly treated, they’ve got someone they can go to without it becoming a huge deal.

Luke    Ok, and that’s sensible, coming back to the productivity issue you’ve spoken about before. Knock it on the head quickly, hello happy days or at least there’s some chance of having happy days.

DT       Absolutely, and the other thing, you know…people are sometimes difficult and people sometimes think that the workplace is the source of their problems and really it’s not.

Luke    131873 the open line number. Give us a call, speak to David Taylor from Turner Freeman and we’ve got Bob on the line in Bathurst. G’day Bob.

C1       Hi, how are you?

Luke    Good mate, go ahead.

C1       I’ve got a question and I’m asking this specific question for you’ll gather a specific reason. Are the new bullying laws going to be applied to the bullying of volunteers in volunteer organisations?

DT       The new bullying laws and the Fair Work Act as I understand them, won’t apply to volunteers and volunteer organisations. Traditionally, the prohibition on bullying has been found in occupational health and safety laws because bullying is something that is essentially an occupational, health and safety risk and most volunteer organisations would be covered by occupational health and safety law and, therefore, there is scope within those laws to ensure that…well for an organisation to ensure that bullying doesn’t occur.

C1       Well, it’s just that I’m obviously going through this at the moment and there’s…I’ve just been officially told, I can’t mention by who, officially told that there’s nothing that can be done for volunteers even though I’m suffering or have suffered for nearly a year and, obviously, rather severe depression, you name it and there’s no come back and also the company confirmed apparently there’s nothing to stop companies from charging a fee to new cases of bullying which was done to me. I was charged a fee and apparently there’s nothing to stop that. Do you know anything about that?

DT       I don’t know how you’d be charged a fee or why you’d be paying any money.

C1       Obviously I’ve got the proof and I’ve got the receipts…but yeah and, evidently, there’s nothing in the laws or the new laws that will cover that either.

DT       No, there’s not, I think that’s right.

Luke    Yeah. Alright Bob, appreciate your call. Thanks so much 131873 is the number to call. What about post-employment restraints. Can an employer restrict you when you start a new job?

DT       The short answer is no. The longer answer is, if your contract that you’ve got from your old job has post-employment restraints and what to do, then those post-employment restraints may be valid and they may impair what you’re able to do going forward.

Luke    But when it comes to people signing a workplace contract.

DT       Yep.

Luke    You know, I know the right thing to say, you should get legal advice. You probably should. Is cost an issue for some people who think oh I’ll just sign the thing and get on with it?

DT       Well cost is obviously an issue. I think the your bargaining power when you’re getting a new job is also pretty weak. You know, you want the job.

Luke    Yeah, you do, don’t you?

DT       It’s not the time when you’re sitting there going…well, I need to protect myself for when this new relationship ends.

Luke    That’s right.

DT       Often though, that can come back to bite you down the track.

Luke    Yeah.

DT       People also go into new relationships thinking it’s all going to be hunky dory and it’s going to work out.

Luke    Of course. My new boss, he’s a great bloke. Can’t wait to get there.

DT       Yeah, I’ve had a couple of great interviews. We think we’re on the same page…everybody’s the bees knees.

Luke    Yeah exactly.

DT       Yeah, so obviously people do need to be aware though that the restraint that may exist in there will be something that when they’ve been there three or four years and are thinking, well now I want to have a look at the next opportunity in my life.

Luke    Yeah.

DT       All of a sudden, this is something saying…well, I can’t work there or there or there. And often they’re written in such a way as they’re wider than would probably be enforceable but the risk is completely on the employee to actually challenge it and if they want to challenge it in Court before they go anywhere, the cost can be just enormous.

Luke    Yeah.  We’ll take a break in a sec and we might come back and talk about perhaps how employment law might change under a new Government. I understand just a little ago now, Greg Hunt’s office has confirmed to us that they have told Tim Flannery this morning that the first steps are being taken to wind down the Climate Commission. They said it is set up under legislation similar to that of an Authority. So it will take longer to move to a position where it can be wound back. If they end up completely dismantling it, it will not be the same process as dumping it through Commission, it will be a slow process of unravelling a legislated appointment but, again, we’ve been told and Greg Hunt’s office has confirmed to us that they have told Tim Flannery this morning that the first steps are being taken to wind down the Climate Commission. Stop cheering, I can hear you. 14 to 2.

And, of course, we’re here with David Taylor, talking employment law, from Turner Freeman. There’s just a few minutes left for you to call. If you’ve got a question to do with your workplace, employment law 131873. I just need to put David on the pause button for just a moment. I want to go to our reporter in Canberra, Jennifer Raker because, as I told you prior to the break, it now seems to be the case that the Climate Commission is goneski. Now, my attention was drawn to an alert from, I think Flanner himself in relation to the Climate Commission where he said, via Essential Media, who are doing the PR there, that Chief Commissioner, Tim Flannery, said that the Climate Commission provides important information about climate change to the public but today the Government has abolished it. We have the Herald Sun reporting on line that Flannery has been sacked and I have Jennifer Raker on line with probably what is actually going on.

Jen, g’day, what can you tell us?

Good afternoon Luke. Well, it is confirmed, Greg Hunt, the Environment Minister has got in contact with Tim Flannery this morning and told him, in so many words, that the letter’s in the mail. He’s been drawing out the letters and a Climate Commission will be no longer. It’s a move that they say will save…it’s all about saving money and it will save about $580,000 this year and about $1.6m over the years the come. So, the Climate Commission is gone on really what’s the first official day of the new Abbott Government.

And do we understand if Flannery will speak to today or not?

I understand he was speaking in Melbourne, he has been speaking. I’m going to try and get in touch with him myself so he’s really disappointed but I do understand that he did say that Mr Hunt was quite humble and, in terms of notifying him this morning. And also, the other authority Luke, the Climate Change Authority, that’s a bit more of a complicated issue there. We’ll just naturally bed that one down but steps have been taken to also abolish the Climate Change Authority.

Alright Jen, well, I’ll listen for your reports in our news and probably talk to you through the afternoon. Thanks so much for that.

Back to our callers here. David Taylor from Turner Freeman with us this afternoon, talking employment law. I was, David, going to ask you briefly to comment on the new Government. Before I do that, can we get to Mike on the mobile of Baulkham Hills first, who’s on the open line. Go ahead Mike.

C2       Good afternoon Luke.

Luke    Hello.

DT       Hi Mike, how are you?

C2       Look, just a very quick straight question. I’m aware of a young overseas student who’s in our family, we’re looking after her. She’s working part time, whatever she can get. She’s a casual, on call and she’s being paid monthly, after she’s put a month’s work in. Is that correct?

DT       It seems very odd. And it would be most awards and she’d probably be covered by an award, would prescribe different pay periods. That does seem a bit odd. Are you sure she’s an employee and not being done as a contractor?

C2       Oh, that I don’t know.

DT       The way you’re describing it…and it may be what’s known as a sham contractor arrangement which is, where it’s essentially an employment relationship.

C2       Yeah, I think it’s something like that. This is, without mentioning it, it’s an international coffee house sort of a set up.

Luke    Righto.

C2       She’s trying to stay alive and pay her bills and earn whatever she can. It’s flaming’ difficult for her.

DT       Yeah, it can be difficult to budget over a month.

Luke    Yes, indeed.  So you think, is there anything that…

DT       Look, it’s certainly something that she may want to get in contact with the Fair Work Ombudsman and ask them whether or not there’s been some breach of either the Fair Work Act or an Award they can assist her with.

Luke    Alright Mike, try that, thank you. Michelle, g’day.

C3       Good afternoon. When I was at work, which I’ve retired now. The way I handled it, I worked 10 hours a day, they didn’t need any laws. If I didn’t like you or you didn’t like me, I associated with you for the 8 hours at work, I was as nice as you could be. After work, I don’t have to worry about you.

DT       Well, I think that’s a sensible attitude but not everybody else has…

C3       But other people don’t do this because there’s no need to be silly.

Luke    Michelle, you’re a smart one. Thanks for your call. David, what do you think the new Government might do in workplace law/employment law because we do know in the lead up to the election, there was lots of commentary saying this will wind back things to work choices…this new Government, or there’ll be no protection for workers. What’s your take on what’s likely to happen?

DT       It’s really hard to know. They were clearly concerned not to let a campaign around work choices affect their election campaign so there was extraordinarily little around workplace relations in the election campaign to my observation.

Luke    Yeah.

DT       The issues really have only been about regulation of Unions and certainly I think they’ll make some significant changes there. Potentially, there’s the big issue around individual contracts and having award free employees and going back to having some form of individual contract type arrangements, statutory contract, although that’s a bit more controversial and then there’s potentially some things I think around 457 visas and migrant workers.

Luke    Yes indeed, yeah.

DT       You have the sense they’d like to do a fair bit more. Eric is certainly not a conservative man in relation to his workplace relations views and…but whether or not this term will be where they try to do it, or whether they’ll look at waiting to a second term and actually go to the electorate and try to get a mandate to make some significant changes, I don’t know. It was interesting hearing Amanda Vanstone speaking after the election and said, new Government’s should do everything they can in their first term and early on…

Luke    Quickly, yeah yeah.

DT       In the context of workplace relations, it seems exactly the opposite of what they look like they’re going to be doing.

Luke    And they’d be obviously reacting to what happened at the election…two elections ago, whatever it was.

DT       Three elections ago now.

Luke    Anyway, three elections…in relation to work choices. Well they did seem to go too far…gosh I wish we had more time, we don’t. 30 seconds. Work choices seem from everything we’ve heard to be way over the top, too harsh…fair comment?

DT       Yeah, look, in a lot of respects it went too far. Particularly, in disentitling people to any legal support.

Luke    Yeah, and they should have just said, no one will be worse off and, if they do that, perhaps it wouldn’t have been so harsh. I mean, forget the electoral side of it.

DT       I think the definition of small business is anything with less than 100 employees when it’s something that just didn’t sit well with people.

Luke    Yeah, good on you, lovely to see you David. Thank you so much.

DT       Thanks for having me, Luke.

Luke    David Taylor from Turner Freeman, talking employment law.